1- WHEREAS, Advisory Neighborhood Commissions [ANCs] were established pursuant to referendum required by Act of Congress (Act of Dec. 24, 1973, 87 Stat. 824, P.L. 93-198, Title VII) and their roles and responsibilities have been amplified by District of Columbia legislation for more than a quarter of a century in order to provide residents of District of Columbia neighborhoods effective means to communicate their views and concerns to government agencies; and

2- WHEREAS, Congress provided in 1973 that "timely notice" shall be given to each ANC, in the manner to be prescribed by the DC Council, of requested or proposed

  "permits of significance to neighborhood planning and development within its neighborhood commission area for its review, comment and recommendation."

P.L. 93-198, ' 738(d), D.C. Code ' 1-251(d) [emphasis added]; for meaning of "permits of significance" see Shifflet v. D.C. Board of Appeals & Review, 431 A. 2d 9 (D.C. Ct. of App. 1981); and

3- WHEREAS, District of Columbia law has long required that a DC agency, now the Department of Consumer and Regulatory Affairs [DCRA] must issue permits before either construction or demolition of structures may lawfully proceed (see, e.g. D.C. Building Code Supp. of 1992, ' 105.0 "Demolition of Structures"); and

4- WHEREAS, a permit authorizing total demolition "down to the ground" is called a "raze permit" [12A DCMR 107.2.4]; and

5- WHEREAS, DCRA currently fails and, apparently, refuses to comply with the law requiring notice of raze permit applications to ANCs; and

6- WHEREAS, the 1975 ANC law (D.C. Law 1-27, ' 13(c)(3)) required "regular" mailings to each ANC of a "current list of applications" for construction and demolition permits (including raze permits) within the boundaries of the ANC [emphasis added] B i.e., a current list of applications, not a list of ancient applications already acted upon, and certainly not a list of permits already issued without notice to the ANC (D.C. Code ' 1-261(c)(3) [see, also 30-day notice provision of D.C. Code ' 1-261(b) and Shifflet case, 431 A. 2d 9]; and

7- WHEREAS, for many years the permitting agency of DC government did in fact mail such lists of current applications to this ANC and other ANCs before issuing a raze permit, until the DC budget crisis in 1995 led to suspension of such mailings; and8- WHEREAS, on February 3, 2000, this ANC (specifically referring to the razing of a gasoline filling station within ANC 3F without notice to the ANC) sought clarification from the Office of the Corporation Counsel that the statutory notice requirement remains in effect; and

9- WHEREAS, confirming the 1975 law, on February 9, 2000, the Office of the Corporation Counsel advised ANC 3F that ADCRA is required to provide notice to an ANC of applications for construction and demolition permits within the boundaries of the ANC by regularly mailing a list of such applications to the affected ANC@ [Exhibit A]; and

10- WHEREAS, the Office of the Corporation Counsel furnished a copy of that opinion to the Administrator of the Building and Land Regulation Administration [BLRA] in DCRA (as did ANC 3F); and

11- WHEREAS, ANC 3F promptly supplied copies of that opinion letter to each member of the District of Columbia Council, circulated copies widely among other ANCs and referred to it in public testimony at DC Council hearings and in its Annual Report for FY 1999; and

12- WHEREAS, the ANC Reform Act, D.C. Law 13-135 (effective June 27, 2000) strengthened the notice requirement to provide that DCRA "shall insure that each ANC 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 ANC." (DC Register of April 21, 2000, ANC Reform Act, ' 3 amending ' 13(c)(3) of the 1975 ANC law); and

13- WHEREAS, DCRA has not resumed mailing to this ANC (or, we believe, other ANCs) notice of applications for raze permits, leaving this ANC to rely on a monthly listing in the DC Register of raze permits already issued (as well as irregular mailings of lists of some of the raze permits already issued; and

14- WHEREAS, the failure to notify this ANC of raze permit applications as required by law has greatly injured residents of this ANC, leading to the demolition of commercial and historic buildings of interest to such constituents without any opportunity to comment through the mechanism established by law; and

15- WHEREAS, the DCRA compounded injury to residents of this ANC by a secret meeting on January 14, 2000, and a secret agreement drafted in the form of a letter dated January 26, 2000, by two private attorneys (who did not disclose what client or clients they represented) to the Administrator of the BLRA, who signed his "concurrence" at the bottom of their letter on January 27, 2000 [Exhibit B], thereby purportedly agreeing to interpret "raze permit" provisions of the D.C. Building Code Supplement approved by the D.C. Council on October 5, 1999, and published in the DC Register on November 19, 1999, in a way designed to cut off the jurisdiction of the Historic Preservation Review Board, trump the demolition review provisions of the Historic Preservation Act, and trump the ANC notice and review provisions of the ANC Law, although B

a. The D.C. Council had no inkling that its approval could cut back historic preservation protections or ANC review, and
(i) nothing in DCRA's Notice of Proposed Rulemaking published in the DC Register on September 10, 1999, or the Mayor's proposed resolution submittals to the D.C. Council on that date pursuant to Section 10 of the Construction Codes Approval and Amendment Act of 1986 (D.C. Law 6-216; D.C. Code ' 5-1309) indicated any such intention, and
(ii) the text of the regulations, on their face, do not state any such purpose or effect, and
(iii) the pre-legislative history, of submittals to the Control Board in 1998 indicate entirely different concerns and objectives, relating to eliminating the requirement of the pre-1999 regulations that tenants be evicted from premises before a raze permit application could be filed.

b. The Construction Codes Approval and Amendment Act of 1986 does not authorize using its fast-track procedures (i.e., 45-day review by the D.C. Council after which inaction has the effect of approval) to cut back either historic preservation protections or ANC review because the intent of the Construction Codes Act is clearly limited as follows:

Sec. 5   Intent

   The Construction Codes shall be construed to secure their expressed intent, which is to secure public safety, health, and welfare by building construction, through structured strength, energy and water conservation, accessibility to the physically handicapped, adequate egress facilities, sanitary equipment, light, ventilation and fire safety; and, in general, to secure safety to life and property from all hazards incident to the design, erection, repair, removal, demolition, or use and occupancy of buidings, structures or premises.

D.C. Code ' 5-1304 [emphasis added].  As used in that Act "Construction Codes" is defined to include "any future ... supplements" (such as DCMR Title 12A).  D.C. Code ' 5-1301(4) codifying ' 2(4) of that Act.

c. The D.C. historic preservation laws include independent provisions for regulating proposed demolitions.

d. The secret letter of January 26, 2000, did not cite any authority delegated to the Administrator of BLRA to cut back historic preservation protections or ANC review.

e. The Administrator of BLRA in January 2000 and the DCRA itself in 1999 had no authority to cut back historic preservation protections or ANC review by means of these Building Code Supplement regulations or by their interpretation.
f. Neither today nor at the time of the secret agreement of January 26-27, 2000, did the DCRA have unilateral authority to enter into covenants or agreements with "an affected party" (such as the undisclosed client or clients of the two private attorneys) in enforcing the raze permit regulations.  Although Section 6a (effective April 20, 1999) conditionally authorized the Director of DCRA to "enforce" regulations (including Building Code Supplements) by means of covenants or agreements between DCRA and "an affected party" it qualified that authority by requiring prior approval by the Office of the Corporation Counsel and an inter-agency consultation:

...  All such covenants and agreements shall have the prior approval of the Office of the Corporation Counsel for legal sufficiency and compliance with all District and other laws.  Where the Office of the Corporation Counsel determines that, under District law, a covenant or agreement may require the review and approval of other District agencies, it shall so notify such agencies and establish an inter-agency review process for review and, if required under District law, approval. ....

D.C. Law 12-261, ' 3002, D.C. Code ' 5-1305.1(b).

g.   Even if the Director of DCRA had ordered the Administrator of BLRA to concur in the private attorneys' letter and thereby enter into the secret agreement of January 26-27, 2000, or delegated to him the authority to do so, DCRA would still have had to secure approval of the Office of the Corporation Counsel which apparently was neither sought nor secured.  Moreover, the same April 1999 amendment instructed the Director to administer all "regulations issued hereunder, in a manner that is fair, ... , devoid of unnecessary time delays ..., and directed at enhancing the protection of the public health, welfare, safety and quality of life."   D.C. Law 12-261, ' 3002, D.C. Code ' 5-1305.1(b) [emphasis added].

h. The secret agreement of January 26-27, 2000, (i) was unfair to ANCs and to residents and (ii) would, if allowed to cut back historic preservation protections, detract from the quality of life. And (iii) a short delay for ANC review is necessary in order to carry out the Congressional mandate.

16- WHEREAS, the secret agreement of January 26-27, 2000, to deny public notice of raze permit applications was never published in the DC Register or otherwise B or revealed to ANC 3F until April 2001 (and then not by DCRA, as explained below), but is now being cited B over fourteen months after it was secretly written B to justify an outrageous interpretation and procedure; and

17- WHEREAS, there is reason to suspect that, before secretly concurring in the interpretation urged upon him by the two private attorneys, the Administrator of the BLRA

a. failed to consult with the Office of the Corporation Counsel or any D.C. Government attorney;

b. failed to consult with (or even notify) the professional staff of the Historic Preservation Office (which then reported to the Administrator and was transferred, effective October 1, 2000, to the Office of Planning) before concurring

and failed B even after his concurrence on January 27, 2000 B to notify the Historic Preservation Office of the existence or substance of that secret agreement; and

18- WHEREAS, the secret agreement of January 26-27, 2000, to deny public notice of raze permit applications at a time when neighborhood comment might receive meaningful attention from the decision-making authorities threatens to undermine an important avenue for sound neighborhood planning and development and for preservation of cultural resources of the District of Columbia and is contrary to the best interests of the District of Columbia as a whole; and

19- WHEREAS, during the year 2000, flouting the opinion of the Office of the Corporation Counsel issued February 9, 2001, at the request of ANC 3F (with a copy to DCRA,) DCRA set out to eviscerate any meaningful ANC review (while retaining a misleading semblance of notice and review) by drafting a document entitled "NEW RAZE PERMIT PROCEDURES UNDER THE 1999 BUILDING OF COLUMBIA BUILDING SUPPLEMENT."  [Exhibit C]  That document makes the following statements about a two-step procedure, involving an initial "Raze Permit" followed by a "Supplemental Razing Operations Permit" [emphasis added]:

"In order to raze a building, the owner must first obtain a Raze Permit, which vests the Owner's rights to raze the building.  In addition, the Owner or Contractor must also obtain a Supplemental Razing Operations Permit, on a supplemental application.   The Razing Operations Permit approves the method of demolition and proof that the utilities have been properly disconnected. * * *  Raze applications shall be processed at the time of submittals and a raze permit issued over the counter except for structures subject to Historic and Fine Arts approval."

"Before a Raze Operation Permit can be issued the subject building(s) must be unoccupied. ...  Notification of the intent to raze will be given to the D.C. Register, and the Advisory Neighborhood Commissioner [sic](ANC), with a 30-day review time period."

20- WHEREAS, ANC 3F learned of the existence of the secret agreement of January 26-27, 2000, as follows:

a. At the ANC's March 19, 2001, monthly meeting, we learned that DCRA had issued an initial raze permit dated March 1, 2001, and that a neighborhood group had applied a few days later for Historic Landmark designation and had a hearing scheduled for April 26, 2001, before the Historic Preservation Review Board (Designation Case No. 01-06, accepted for filing March 9, 2001).

b. In order to develop recommendations as to historic designation, we immediately noticed the matter for our April 16, 2001, monthly ANC meeting.  We also wrote to the Office of the Corporation Counsel requesting a ruling as to the validity of the initial raze permit.

c. DCRA never furnished us a list of current applications for raze permits (either for our ANC or City-wide) which included the application in question before issuance of an initial raze permit.  The DC Register for April 6, 2001, includes a City-wide list of "raze permit applications filed with the Permits Processing Division" that includes this application as being filed on March 2, 2001 B i.e., listing an "application" when in fact that initial permit was issued already.
c. On April 12, 2001, the holder of the initial raze permit (which DCRA issued B over the counter, without notice to anybody B about five days after the permittee tells us it closed on the property), supplied a copy of the secret agreement (of which we were then unaware) B characterizing it as a "Ruling in Support of Permit."  Permittee asserted that Section 107.2.4 of the Building Code gave it "the right to remove the house from the property if it so chooses."

NOW, THEREFORE, ANC 3F resolves:

A. That Mayor Williams or City Administrator Koskinen or Deputy Mayor Price order DCRA to comply with the notice requirements of the ANC law as construed by the Office of the Corporation Counsel; and

B. That the District of Columbia Council determine why DCRA does not comply with the notice  requirements of the ANC law as regards raze permit applications; and

C. That the Inspector General investigate the circumstances of DCRA's failure to comply with law, including the secret agreement of January 26-27, 2000, and its aftermath, DCRA's interpretations of the November 19, 1999, raze permit regulations without advice of government counsel, DCRA's failure to notify ANCs and the Historic Preservation Office of the issues or of DCRA's secret agreement, and DCRA's implementation of the raze permit regulations.

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Approved by a vote of 7-0-0 at a duly noticed meeting on April 23, 2001 with a quorum present.
 

/s/ David J. Bardin                                                       /s/ Robert V. Maudlin
Chair                                                                           Secretary

Attachments to ANC 3F Resolution 01-10:

 [Exhibit A] Feb. 9, 2000 opinion letter from Office of the Corporation Counsel to ANC 3F

 [Exhibit B] Jan. 26-27, 2000 secret agreement between two private attorneys and DCRA

 [Exhibit C] Undated DCRA document describing raze permit procedures posted June 9, 2000 on DCRA website

Attachment are not included on this web site.  Copies may be obtained from ANC3F.  (202) 362-6120