December 8, 2002
Board of Appeals and Review
441 4th Street NW
Suite 540S
Washington, DC 20001
Re: Docket No. 025863- CI, J Brendan Herron, Jr., Appellant v. Department of Consumer and Regulatory Affairs, Appellee
Dear Members of the Board:
ANC 3F resolution 02-38 (see enclosed) was adopted by a unanimous 7-0-0 vote at a duly noticed public meeting on November 18, 2002. This resolution supports in part, the appeal of J. Brendan Herron before the Board of Appeals and Review, Docket No. 025863-CI. Mr. Herron is appealing the decision by the Department of Consumer and Regulatory Affairs (DCRA) to the issue raze permits and construction permits for the property located at 2900 and 2902 Albemarle Street NW.
Mr. Herron's appeal of DCRA's decision to issue construction permits B446316, 2900 Albemarle Street NW, and B446312, 2902 Albemarle Street NW, should be upheld, at least in part, because DCRA violated statutory requirements pertaining to the issuance of these permits. In the first instance of violation, DCRA denied ANC 3F the statutorily required 30 days to review the application for these permits. In the second instance, by denying ANC 3F the 30 day review DCRA also placed itself in non-compliance with the statutory requirement that ANC 3F's comments on the application for the permits be accorded "great weight" in DCRA's decision to issue the permits. Since ANC 3F was denied access to see the application and supporting documentation, it was effectively precluded from reviewing and commenting on the application. Absent the ability to comment, ANC 3F was prevented from receiving the required "great weight."
The denial of the 30 day review period was based on DCRA's erroneous interpretation of privacy requirements and equally erroneous and incorrect interpretation of the requirements of the Freedom of Information Act (FOIA). Shortly after Zuckerman Brothers Development Corporation filed an application for construction permits for 2900 and 2902 Albemarle Street NW, Commissioner Robert Maudlin of ANC 3F visited the Permit Application Center at DCRA to review the application. During this visit DCRA denied Commissioner Maudlin the opportunity to review the plans and drawings accompanying the Albemarle Street application. This denial was based on the erroneous assertion by DCRA staff that the plans and drawings are protected by the privacy rights of the applicant. Numerous telephone conversations between Commissioner Maudlin and Commissioner Kogan and DCRA officials were required over a 15 day period before DCRA relented and admitted that it had erred on the matter of privacy rules. But the exclusion of ANC 3F from reviewing the application did not end here.
In a May 9, 2002, e-mail (see enclosed) Theresa Lewis of DCRA notified Commissioner Kogan that ANC 3F's right to review the application during the agency review process is exempt from FOIA requirements. This second denial of ANC 3F's right to review the application is based on an erroneous and incorrect reading of the FOIA requirements. In fact, the FOIA specifically limits the pre-decisional exemption to "inter-agency and intra-agency memorandums and letters", none of which were at issue since ANC 3F was simply seeking an opportunity to review the applicant's filing. Further, DC Code Section 1-309-01 entitles ANC 3F pursuant to FOIA to all public data "that are material to the exercise of its recommendations to the District government". DCRA's interpretation of FOIA was not only incorrect and erroneous but it also had the effect of taking from ANC 3F a statutorily enacted authority to review the application and a statutory authority to receive information pertaining to such a review under FOIA, the very same statute that DCRA was citing as a basis for denying the information.
In her May 9 e-mail Ms. Lewis asserts that
even though the proposed construction of the two single family dwellings [which are requested in the application] is a "matter of right", the Department will withhold the issuance of the building permits until June 3 2002, to allow you and your organization time to fully review the application.
Taken by itself, Ms. Lewis' statement appears to grant to ANC 3F the review time it had requested. However, this is patently not the case. The Board should note that in the same e-mail in which she establishes the June 3 decision date, Ms. Lewis continues to deny ANC 3F access to the application based on DCRA's incorrect and erroneous interpretation of FOIA. Because DCRA prevented ANC 3F from reviewing the application, it effectively prevented ANC 3F from exercising its statutorily granted review authority and consequently denied ANC 3F the opportunity to receive "great weight." The Board should also note that at no time did Ms. Lewis deny that ANC 3F should have received notice of these permits, nor at any time did she deny that the views of ANC 3F should receive "great weight." The suggestion by Appellee that notice and "great weight" do not apply in this case (see below) came after access to the application and supporting documentation was made based on privacy and FOIA requirements.
Intervenor Epting in a brief
filed on behalf of Zuckerman Brothers points to Ms. Lewis' e-mail and states
that ANC 3F was "provided with more that thirty days to review and comment
on the plans." Intervenor is in error on this point since the statutory
30 day review can only occur if ANC 3F is able to review the application.
ANC 3F was not able to review the application and supporting documentation
when they were filed because of DCRA's erroneous and incorrect application
of privacy and FOIA requirements. Without access to the application as
filed, ANC 3F was denied a right to review that is granted by statute.
Further, Intervenor fails to recognize that a consequence of the denial
of the right to review is that the statutory requirement that "great weight"
be given to the ANC's comments on the application as filed is also denied
since in the absence of a review, there can be no comments within the meaning
of the statute; and without comments, again within the meaning of the statute,
there can be no granting "great weight". Therefore, Intervenor is incorrect
in suggesting that "great weight" was granted to ANC 3F's comments. Intervenor
has misread ANC 3F Resolution 02-23 and Commissioner Kogan's letter to
DCRA dated May 3, 2002, as constituting comment on the application. (See
enclosed May 3, 2002, letter from Commissioner Kogan forwarding Resolution
02-23 to DCRA Director David Clark.) In fact, these documents, which also
communicated to DCRA a number of concerns raised by citizens in ANC 3F,
are a protest against DCRA's denial of access to the application and supporting
documentation, a denial which prevented ANC 3F from executing its statutory
review
responsibility.
A decision by Board of Appeals
and Review that would be based on the interpretation of Intervenor would
have the effect of shredding the statutory requirements for "great weight"
since DCRA would be free in future cases to simply withhold relevant information
from ANC 3F during the 30 day review period and thereby relieve itself
of both the notice requirement and the "great weight" requirement. The
Board should not take such a step. Intervenor's interpretation is also
wrong in that Ms. Lewis's response does not reference or even suggests
that it is intended to address the statutory "great weight" requirement.
ANC 3F takes strong exception to the assertion in Appellee's brief that 30 days notice and "great weight" are not legally required for applications for construction of individual single family residences which are matter of right in residential zones. Appellee misinterprets prior Court of Appeals decisions and makes broad and unsupported assumptions in seeking to create a rationale for DCRA to circumvent statutory requirements. Appellee also fails to recognize that statutory requirements contained in the Comprehensive Advisory Neighborhood Commissions Reform Amendment Act of 2000, which was enacted following the issuance of the cited Court of Appeals decision, takes precedence over this decision.
We understand that decisions by the Court of Appeals have defined and refined the requirements for 30 day notice and "great weight". However, in Office of the People's Counsel v. Public Service Commission, the Court did not grant unbridled administrative discretion which would allow DCRA to limit the number of permit actions that require 30 days notice and "great weight". In this decision the Court states that while
matters not requiring a hearing could 'be sufficiently significant to neighborhood planning and development to warrant special notice to an ANC, we did not suggest in any way that the kinds of neighborhood maters requiring special notice. . .could go beyond the kinds of matters specifically listed in §1-261(c).
In other words, the Court recognizes that the statutory list of requirements continues to define the actions that trigger the notice and "great weight" requirements. The Court's decision says nothing that would support DCRA's attempt to limit the statutory requirements to a narrow list of permit actions. While we agree with the actions cited by DCRA as requiring notice and "great weight", any limitation of the statutory requirements by DCRA, in order to be valid, would require legislative approval or administrative rule making in accordance with the Administrative Procedures Act. Since neither of these have occurred, the action of DCRA in attempting to limit the application of lawfully enacted statutory requirements must be rejected by the Board of Appeals and Review. DCRA, in effect, is attempting to conduct rule making "on the fly", bypassing established due process requirements to change statutory requirements to suit its own narrow needs while at the same time trampling on the rights of neighborhood citizens and ANC's, the principal recipients of the benefits conveyed by ANC legislation. This should not be allowed.
We would argue as well that the permit applications at issue in this case clearly fall into the category of "matters of significance to neighborhood planning and development." The Forest Hills neighborhood is an environmentally sensitive area which adjoins Rock Creek Park, part of the National Park Service, and also contains Soapstone Park, also part of the National Park Service, within its borders. The Forest Hills neighborhood is distinguished by the large number of mature trees that populate the neighborhood and is treasured for this characteristic. In recent years development in the neighborhood has been characterized by practices which threaten its legacy as a neighborhood of trees. These involve clear cutting of lots and the removal of large numbers of trees. The purpose is to make way for construction of very large houses that make maximum use of the lots and reduce the amount of land available for planting new trees to replace those that have been destroyed. It is, in part, this threat to Forest Hills' legacy of trees that gave rise to consideration by the Zoning Commission of a special protective tree and slope overlay for the neighborhood. The Commission is expected to publish its proposed overlay for public comment in the very near future with the intent of creating a protected zone for the Forest Hills neighborhood. Within this context the Board of Appeals and Review should recognize that development of new single family homes in the Forest Hills neighborhood has been a great concern to ANC 3F and citizens of the neighborhood for a number of years. For this reason, any new development of single family homes must be considered a "matter of significance to neighborhood planning and development" which warrants that notice and "great weight" be given to the ANC within the meaning of the People's Counsel decision.
In addition, it is clear in DC Code 1309.10(c)(3) that DCRA must notify ANC 3F with a list of applications for construction permits. No limits are placed on this obligation and DCRA, in fact, has been providing such as list to ANC 3F and other ANC's. 1309.10(c)(3) demonstrates that the clear intent of the DC Council in enacting the s of Comprehensive Advisory Neighborhood Commissions Reform Amendment Act of 2000, seven years after the People's Counsel decision, was to ensure that applications received by DCRA for construction and demolition, including the applications for the work at 2900 Albemarle Street, fall within the notice and "great weight" requirements. 1309.10(c)(3) requires the following.
The Department of Consumer and Regulatory Affairs shall ensure that each Advisory Neighborhood Commission is provided at least twice a month by first- class mail with a current list of applications for construction and demolition permits within the boundaries of that Advisory Neighborhood Commission. All notices shall also be provided to the Office of Advisory Neighborhood Commissions. Each Commission and the affected ward Councilmember shall also be provided at least twice a month with a current list of applications for public space permits.
Further, Section 1309.10(d)(1) requires that the ANC is entitled to make recommendations on building permits.
Each Commission so notified pursuant to subsections (b) and (c) of this section of the proposed District government action or actions shall consider each such action or actions in a meeting with notice given in accordance with § 1-309.11(c) which is open to the public in accordance with § 1-309.11(g). The recommendations of the Commission, if any, shall be in writing and articulate the basis for its decision.
And Section 1309.10(d)(3) establishes the "great weight" requirement.
The issues and concerns raised in the recommendations of the Commission shall be given great weight during the deliberations by the government entity. Great weight requires acknowledgement of the Commission as the source of the recommendations and explicit reference to each of the Commission's issues and concerns. (B) In all cases the government entity is required to articulate its decision in writing. The written rationale of the decision shall articulate with particularity and precision the reasons why the Commission 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 Commission. Further, the government entity is required to support its position on the record. (C) The government entity shall promptly send to the Commission and the respective ward Councilmember a copy of its written decision.
Thus, in the case of the 2900 Albemarle Street applications, DCRA had a statutory obligation to notify ANC 3F of the applications; to consider ANC 3F's recommendations in its decision, including the two resolutions passed by ANC 3F; and to give "great weight" to the views of ANC 3F within the meaning of the statute. As we have documented, DCRA failed to meet these statutory obligations.
The Board of Appeals and Review must grant ANC 3F "great weight" in reaching its decision in this case. The Board is being asked to rule on a matter involving issuance of a permit. Section 1309.10 of the DC Code (Comprehensive Advisory Neighborhood Commissions Reform Amendment Act of 2000), specifies the requirements for assigning "great weight" to ANC comments. Instances where "great weight" must be given include actions by "boards" with respect to "permits" affecting the ANC area in question. In the referenced case, the BAR is being asked to rule on a permit decision within ANC 3F's area. It is clear from the legislation that the BAR must give "great weight" to ANC 3F in the referenced case. As stated above, such an interpretation is consistent with the case history which defines the "great weight" requirement.
In the view of ANC 3F, DCRA's actions in processing the application for permits B446316 and B446312 were egregious in that DCRA failed to meet its statutory responsibility to allow ANC 3F 30 days to review the applications and consequently denied to ANC 3F the right to have "great weight" given to its recommendations. Initially, DCRA relied on what it has since admitted is an incorrect interpretation of privacy rules to deny ANC 3F and members of the public access to the application. Having retreated from this erroneous position, DCRA denied ANC 3F the opportunity to review the application a second time. In this second denial DCRA used an erroneous and incorrect interpretation of the FOIA as the basis for its actions. DCRA's actions in invoking incorrect and erroneous statutory interpretations had the effect of denying ANC 3F its statutory right to review the application and to have "great weight" accorded its comments. One can only speculate as to the motives that moved DCRA officials to invoke these erroneous interpretations and deny ANC 3F that which had been granted by statute. Whatever the motives may be, the effect is clear. ANC 3F was precluded from exercising its statutory authority. In fact, DCRA's erroneous and incorrect application of privacy and FOIA requirements appears to be in direct violation of Section 1309-10(i)(1) which states that
Each Commission shall have access to District government officials and to all District government official documents and public data pursuant to §2-531 et seq. that are material to the exercise of its development of recommendations to the District government.
DCRA's egregious errors are compounded by Appellee's brief which incorrectly asserts that DCRA is obligated to provide notice and give "great weight" to ANC 3F in only the instances in which it determines these are to be granted. As we have shown, such an interpretation is not supported by the law. Further, when taken together, DCRA's denials of notice and "great weight" and Appellee's incorrect rationale for denying these to ANC 3F suggest that DCRA's does not wish to be burdened by these statutory requirements. If this is the case, DCRA's remedy is to obtain legislative action from the DC Council. Short of doing this, DCRA is obligated to implement the law as it is written.
The fair remedy in this case, a case which has been characterized by egregious errors on the part of DCRA in preventing the law from being properly applied during the application review process, is to ensure that ANC 3F is given the opportunity to exercise its right to review and comment and to and receive "great weight". This can be accomplished by granting Mr. Herron's request that new applications be submitted and processed in a manner that meets statutory requirements.
It is also noted that ANC 3F did not receive a written response to Resolution 02-24 regarding the raze permit for 2900 Albemarle Street and thus "great weight" was not given to the ANC's views on this resolution. Again, the issuance of this permit without "great weight" consideration is a violation of DC Code 1310.10(d)(3). (See enclosed May 8, 2002, letter from Commissioner Kogan forwarding ANC 3F Resolution 02-23 to DCRA Director David Clark.)
Sincerely,
Phil Kogan
Commissioner, ANC 3F01
Enclosures