WHEREAS:  DCRA in June 2002 issued permits B446316, 2900 Albemarle Street construction permit, and B446312, 2902 Albemarle Street construction permit; and

WHEREAS:  DCRA erroneously denied ANC 3F Commissioners Kogan and Maudlin, as well as other Commissioners and concerned citizens in ANC 3F, the opportunity to review the applications, plans, and drawings for these construction permits based on the erroneous assertion by DCRA staff that such information was protected by privacy rights of the applicant; and

WHEREAS:  DCRA’s erroneous denial interfered with and significantly delayed ANC 3F’s ability to review the application, plans and drawings and to comment on the applications within the statutorily allowed 30 days of the filing; and

WHEREAS:  By resolution of April 29, 2002, ANC 3F strongly recommended that DCRA extend for an additional 30 days the review period for the applications for construction permits at 2900 and 2902 Albemarle Street NW; and

WHEREAS:  DCRA by e-mail to Commissioner Phil Kogan dated May 9, 2002, denied ANC 3F’s request for a full 30 day review of the applications and again denied ANC 3F access to the applications, plans, and drawings for construction permits at 2900 and 2902 Albemarle Street NW; and

WHEREAS:  This second denial by DCRA, being blatantly frustrating to effective ANC
review and recommendations, was again in error since the denial was made on the basis of circular and unfounded reasoning that access could be denied under the Freedom of Information Act (FOIA [D.C. Code Section 2-531 et seq.]) – which in fact limits its so-called pre-decisional exemption from disclosure to "Inter-agency or intra-agency memorandums and letters" [D.C.   Code Section 2-534(a)(4)] – whereas the ANC Statute [D.C. Code Section 1-309.01 et. seq] entitles the ANC to access from DCRA pursuant to FOIA to all public data "that are material to the exercise of its recommendations to the District government" [D.C. Code Section 1?309.10(i)(1)]; and

WHEREAS: The data ANC sought were exclusively data submitted to DCRA by a private applicant for a permit as to which the ANC had a right to make recommendations and not memorandums or letters of DCRA or of any other government agency; and

WHEREAS:  In its second denial, DCRA’s assertion that it would withhold issuance of the building permits until June 3, 2002, left intact DCRA’s decision to deny ANC 3F the full 30 days authorized by statute for review of applications, plans, and drawings; and

WHEREAS:  Brendan Herron of 2901 Albemarle Street NW on July 3, 2002, appealed the issuance of permits B446316 and B446312 to the Board of Appeals and Review (BAR); and

WHEREAS:  Mr. Herron’s appeal, among other objections to DCRA’s actions in this matter, specifically references DCRA’s failure to allow ANC 3F 30 days to comment on the plans as well as its failure to meet the DCMR 1-1309.10 requirement for giving great weight and providing a written response to any concerns that ANC 3F might have; and

WHEREAS:  The requirement for great weight extends to a decision by the BAR on Mr. Herron’s appeal since this would be a permit decision which by statute carries with it the great weight requirement.

THEREFORE BE IT RESOLVED THAT:  ANC 3F recommends that the Board of Appeals and Review grant Mr. Herron’s appeal, at least in part, on the basis that DCRA acted erroneously and did not meet the statutory requirement to allow ANC 3F 30 days to comment on the applications for permits B446316 and B446312 and did not meet the additional statutory requirement for giving great weight to ANC 3F’s comments in Resolution 02-23 and providing a written response to any concerns that ANC 3F might have stated; and

BE IT FURTHER RESOLVED THAT:  ANC 3F recommends that the Board of Appeals and Review grant Mr. Herron’s request that new applications be submitted and processed in a manner that meets the statutory requirements for a 30 day review and comment by ANC 3F and that also meets the additional requirement that DCRA respond in writing to any concerns ANC 3F might have.

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Adopted November 18, 2002, at a duly noticed public meeting with a quorum present by a vote of 7-0-0.
 

   /s/   Cathy Wiss                                                /s/   David J. Bardin
   Cathy Wiss, Chair                                            David J. Bardin, Secretary