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District officials fire back on NCPC "bureaucratic blackmail"
National Capital Planning Commission Vice-Chair Rob Miller, who works for Vincent Gray, NCPC member and DC Planning Director Harriet Tregoning, and DDOT Director Gabe Klein sent strong letters to NCPC Chairman Preston Bryant objecting to his sudden attempt to block an FTA grant for DC streetcars.
The letters make a number of important points. The FTA grant itself would pay for extending the streetcar outside the area where overhead wires have been traditionally disallowed. Meanwhile, the DC Council's legislation on overhead wires goes to great lengths to protect the areas NCPC has generally considered to be part of the "federal interest," including the Mall and areas with views of key memorials.
In fact, as Gabe Klein notes in his letter, the legislation allowing wires on H Street and Benning Road but not allowing them elsewhere until after further planning and debate is an approach "NCPC initially supported as a compromise." DC has repeatedly tried to craft the rules in a way that accommodate NCPC's concerns, but NCPC seems to have responded by seeking broader power over streetcars than the law allows and beyond their traditional role.
And, very importantly, Bryant's letters represented a commission consensus that didn't exist; the board, which includes Presidential appointees, representatives of executive agencies, Congressional representatives, and DC officials and appointees, hasn't yet debated the issue.
In her usual diplomatic yet effective style, Tregoning wrote,
As you may know, I was very much looking forward to your leadership of the Commission and based on my own experience working with you (recently and when you were part of Governor Kaine's Administration), I had complete faith in your good will and candor. I particularly relied on your representation in your communication to the Commission in mid-June:Klein also points out that the Benning Road segment, the one the FTA grant would cover, would "serve a highly transit-dependent community, experiencing a 20 percent unemployment rate." This is, as Tregoning noted, "an area of the District in which the Commission has historically shown limited interest."I am aware that each Commission member has his or her own thoughts over streetcars. Therefore, in discussions with other parties, we are being mindful not to suggest that the Commission has agreed to anything at all. ...Thus, I was particularly disappointed and concerned about the letters that went out under your signature this past week.Items that impact the Mall and views of major monuments are generally agreed to be part of the federal interest, and the Council's initial legislation clearly offered those protections while the final emergency overhead wire legislation went even further. All new streetcar purchases will be required by law to operate for one mile without wires, and the Council will need to approve any new segments including a plan detailing the potential impacts on view corridors or historic districts.
However, when the Council declined to expand NCPC's approval authorities beyond the powers granted by federal statute (which it cannot do in any event), the seemingly petty response was a letter to the FTA. ...
I especially regret the loss of comity and the potential harm to the heretofore excellent working relationship between the District and the NCPC, but this is an issue of democracy and home rule and thus a matter of principle for the District.
I hope we can endeavor to get beyond this disagreement and regain a state of mutual respect and cooperation, but the path forward will not be via one of us seeking to restrict the funding of the other.
She's being too kind; NCPC, like the Committee of 100, seemed very unconcerned about what goes on east of the Anacostia until it became politically expedient to suddenly want to protect views all across the city from the pesky wires that would interfere with looking at all the freeways, power plants, and aboveground power lines that nobody had objected to before.
Commission members are slated to discuss the wire issue today in executive session. I realize there are legal opinions involved, but it's ironic that NCPC will now be talking in secret about their position on wires given that one of Bryant's arguments for a stepped-up NCPC role was to ensure public participation. Did they really want public participation or just their own?
Miller's letter was in the body of an email, which I have reproduced below; here are Harriet Tregoning's and Gabe Klein's letters.
From: Miller, Robert (COUNCIL)
Sent: Mon 6/28/2010 1:27 PM
To: Bryant, Preston; Commission Members
Cc: Young, Deborah B.; Acosta, Marcel C.
Subject: RE: streetcar issue - update #3Preston,
A direct response from Chairman Gray to your 6/24/10 letter to the DC Council may be forthcoming, sometime after consideration by the Council of the pending legislation discussed in your letter, which would amend the existing law regarding overhead wires in the L'Enfant City.
However, in the meantime, I must strongly object to your 6/24/10 letter to the Federal Transit Administration, opposing the District's $25 million federal grant application. The purpose of this application has nothing to do with the existing law that would be amended by the Council's pending legislation. Rather, the purpose of the grant is to extend the tracks on the H Street-Benning line from Oklahoma Avenue to the Benning Road Metro - an area of the city not even affected by the existing overhead wires prohibition. These grant dollars are critical to the District's efforts to extend economic revitalization and transportation connections to one of the most underserved areas in the city located east of the Anacostia River.
I also must object to the statement in your letter to FTA that "NCPC maintains Council's legislative action is contrary to a legal opinion issued by NCPC's General Counsel." As you well know, no vote has been taken by NCPC to date on the legality of the pending legislation, and for you to have characterized that as the NCPC position in your letter to FTA
— as opposed to your position or the NCPC General Counsel's position — is misleading. The cited legal opinion has not even been shared with me as vice chair of NCPC, nor I believe with any District members of NCPC (although it was verbally summarized and discussed at NCPC's June 2010 executive session), despite the fact that the District has been open in providing NCPC with two other legal opinions (one by the DC Office of Attorney General, and one by attorney Andrea Ferster) which each concluded that the District has the authority to enact the proposed legislation. Regarding your substantive concerns about the legislation, it is my understanding that the current draft of the bill includes several accommodations to federal interest and historic viewshed concerns, and the District executive and Council continue to work with NCPC on processes going forward to ensure that federal interests and historic viewsheds are protected, which I hope would be incorporated in a Memorandum of Understanding between the executive and NCPC. However, I am sure you would agree that the Council has no authority to provide NCPC with approval authority over any matter, as had been proposed by NCPC staff to Councilmember Wells' staff.
I respectfully request your withdrawal of the 6/24/10 letter to FTA, which I would characterize as a form of bureaucratic blackmail that is contrary to the best interests of residents, workers, and visitors in the District of Columbia.
Rob
Robert Miller
Legislative Counsel to
DC Council Chairman Vincent C. Gray
The John A. Wilson Building
1350 Pennsylvania Ave NW, Suite 504
Washington, DC 20004
 | David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater.   |
Comments
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by Dave on Jul 1, 2010 12:35 pm • link • report
I'm glad to see D.C. officials biting back, but unlike the Council's authority over streetcars, Congress has made it specifically clear in law that the Council has no authority to alter the Heights of Buildings Act.
by Adam L on Jul 1, 2010 1:12 pm • link • report
by Ron on Jul 1, 2010 1:17 pm • link • report
I doubt most DC/Maryland/Virginia residents even know the organization exists. With this kind of publicity, when folks hear and learn that some political crony from the Carolina's appointed by an ex-President is making decisions that have a real impact on their lives, the group won't last long.
by Biff on Jul 1, 2010 1:37 pm • link • report
I think the most egregious part of this episode is that you have a director going for a power grab contrary to the interests of certain of the board members and he does so under the false cove of speaking for the group. That's downright unethical and he should be kicked off the commission for his actions.
by Reid on Jul 1, 2010 1:51 pm • link • report
by Ken Archer on Jul 1, 2010 2:17 pm • link • report
by James on Jul 1, 2010 2:33 pm • link • report
Here here. I'm not sure, however, that he could be kicked off. Unlike members of the Cabinet who serve at the President's pleasure, the three federal "at large" members of the NCPC are appointed for 6-year terms. Two of the members, Mr. Hart of Maryland (a lame-duck appointment) and Mr. Ames of South Carolina (WHAT?!?), were appointed by Bush. The 6-year term was obviously instituted to avoid (one would assume) making the NCPC into a political body and ensure some continuity between Presidential administrations.
Now, if there was enough pressure, Mr. Bryant could essentially be forced to resign and Obama could reappoint someone to fill the remainder of his term. Alternatively, the President could select another member of the commission to serve as Chairman. Other than that, I imagine it would be difficult to remove Bryant.
See also: Law Establishing Membership of the NCPC
by Adam L on Jul 1, 2010 2:34 pm • link • report
by Barry on Jul 1, 2010 8:43 pm • link • report
@David, given the fantastic piece you wrote about Fenty naming someone obviously not qualified for the zoning commission board and (though you didn't say it) obviously getting a payback for generous campaign contributions (and you don't need to say it, a quick search on the web shows that ...), are you maybe not concerned abou the types of DC appointees that Fenty has placed on other boards ... including the NCPC ... ? If for no other reason, are we not getting a big clue as to shananigan going on in this respect when the Vice-Chair writes what this guy has done? You don't really think it's because he thought it was the 'right thing to do', do you? Normal board members don't act that way. They realize the importance of a united face for the board ... I think Barry at 8:43 is on to something.
by Lance on Jul 1, 2010 11:52 pm • link • report
by rob miller on Jul 2, 2010 3:31 am • link • report
Yes, it's the internet, so it must be true?
I, for one, think Mr. Miller has served the city honorably for many years. We should all be so fortunate so have capable citizens willing to act in these capacities.
by Andrew on Jul 2, 2010 5:53 am • link • report
Not only were these crazy assertions baseless, but the article makes absolutely clear in multiple locations that Mr. Miller is a DC Council representative on behalf of Chairman Gray, including the very first sentence. He's not a Fenty appointee.
I've always found Mr. Miller to be a very thoughtful, knowledgeable and honorable public servant. In this case, he's defending the home rule interests of the District.
And no, Lance, public boards should not bury disagreement and present a "united front."
by David Alpert on Jul 2, 2010 7:10 am • link • report
by Urbanette on Jul 2, 2010 7:26 am • link • report
by Lance on Jul 2, 2010 1:19 pm • link • report
I've had my share of issues with Rob (Boston House, Third Church) in the past, but may have to reconsider my opinion of him.
Bryant intimating he spoke for the Commission - without prior consultation -is dishonest, unprofessional and unforgivable. Hooray for Miller (and his boss) for having the backbone to stand up for the District, even though it means going against SOME of the Preservationists. Perhaps now Gray and Fenty could join with Norton to seek to have Bryant stripped of his Chairmanship.
by Mike Silverstein on Jul 2, 2010 6:36 pm • link • report
and let's not mince words. attempts to keep the poorer parts of the city from having access to the things necessary to get more jobs and investment in those parts of the city are an environmental justice issue. the fact is that no one complained about destroyed viewsheds from a pepco power plant, the freeway building and installation of other wires east of the river. suddenly this complaint? that's the fishy thing, making it much more fair to spread rumors of why NCPC would be acting like this.
by IMGoph on Jul 3, 2010 7:51 am • link • report
If the NCPC Chair had written the letter on personalized letterhead and made clear that these were his views, then I would agree with you. However, the NCPC did not discuss this in a way that would authorize such a view from the organization.
I do not think the President or Chair of a public board or commission has the right to express unilateral views of the entity without consultation, public discussion and/or a vote. A public entity like the NCPC is very different than a private corporation or yes, the executive branch of a government.
by Andrew on Jul 3, 2010 7:58 am • link • report
And how is that?
Btw, there was an interesting article in the Examiner yesterday reporting on this. I'm glad to see Delegate Eleanor Holmes Norton getting involved in this. I think her involvement will put to rest the notion that this is in any way a home rule issue. It's not.
[http://www.washingtonexaminer.com/local/Streetcar-war-heats-up-with-battle-of-letters-on-_25m-bid-97623789.html]
by Lance on Jul 3, 2010 9:39 am • link • report
by Lance on Jul 3, 2010 10:27 am • link • report
A private corporation answers to its shareholders/ownership.
The Executive Branch of a government should have a clear hierarchy such that there is a single, elected individual in charge and answerable to the electorate, for example, a governor, mayor, president, county executive etc.
A board or commission has members who make up the body. Generally speaking (and I have not read the NCPC by-laws), membership has staggered terms and are appointed by an executive, or in this case, both the Mayor of the District and the President of the United States (or their designates).
Generally speaking, a board or commission must only make decisions based on deliberations at a publicly noticed meeting open to the public. Board or commission actions are a result of a vote, with a quorum of membership present.
Did the actions of Chair Bryant satisfy any of this? If you think his actions are appropriate under the law, please show me in the NCPC By-laws where unilateral action by the chair is appropriate.
by Andrew on Jul 3, 2010 11:39 am • link • report
What remains to be seen though, is what will be the result of this showdown. I'd be very surprised if Del. Holmes Norton gets trapped in this game like Council has. The stakes are too high for her ... and the rewards (i.e., letting DDOT find a way to justify their bad planning) doesn't nearly come close enough to making it worth her while.
by Lance on Jul 3, 2010 1:27 pm • link • report
by Lance on Jul 3, 2010 1:40 pm • link • report
Are you losing sight of the fact that there is no NCPC jurisdiction over this issue in the areas in question, ie Benning Road, and in Anacostia?
Also, if this were such an issue, then why are wires allowed in the area between the north and south modules of the convention center on L Street? Why was a highway allowed to be built blocking viewsheds of the Capitol in the 1960's (to use but two examples)?
There is such an incredible double standard here that seems very difficult to justify. I applaud you for trying to, however.
by Andrew on Jul 3, 2010 2:02 pm • link • report
NCPC has jurisdiction everywhere ... and not just in DC. You're relying on what David (and DDOT) are telling you in regards to their authority to 'advise' the District. Yes, there's an area where NCPC's jurisdiction is advisory ... but if you read through their website, you'll see that their authority is far vaster than that. There's a whole section on it. The 'advisory' part is just one small part of one small section.
And I'm not even going to get into how a mistake of the past isn't a justification for letting it be repeated. Incidentally, I believe NCPC's gripe isn't with those sections where wires are allowed under the federal act ... but where they aren't. IMHO, Bryant's letter revolves around the legality of the Council resciding the federal wires act as much as around the wires themselves. And this is an issue which could have been avoided had the Council acted in good faith and instead just passed an exemption for H Street NE ... Instead, for whatever reason, they wanted to force the federal government's hand. This'll be interesting to watch. Anyone want to take bets that the feds have more resources as their disposal ... ?
by Lance on Jul 3, 2010 3:19 pm • link • report
Existing federal law may be clear, but calling it a Council power grab is unworthy nonsense, and it is a matter of Home Rule in the most narrow sense.
The Home Rule Charter gives the Council the (unique) power to amend or overturn federal law if that law was specific to the District of Columbia, subject to certain specified exceptions (Sec. 602(a)(3)). The federal restrictions on wires are contained within the DC appropriations acts of 1889 and 1890; such appropriations bills are not within the list of exceptions and have been routinely amended by the Council without anyone claiming it's a power grab. For example, the Clean and Affordable Energy Act of 2008 amended the DC appropriations act of 1914 when it required the Public Service Commission to consider environmental impacts and resource conservation in its regulation of DC utilities.
But, hey, maybe you're consistent. Maybe you should file suit to stop the PSC from considering environmental issues. When you pay your vehicle registration fee, be sure to refuse to pay any increases instituted since Home Rule, because the first vehicle registration fees were created by Congress and increasing them required amending federal law. Of course, you shouldn't recognize the authority of the DMV at all, since the DMV is an unconstitutional body -- the Council created it and gave it powers that were vested in a different body by Congress.
And it goes on, and on, and on. In short, if you're going to argue that the District can't amend District-specific federal laws passed prior to Home Rule, you are calling for the end of Home Rule.
by cminus on Jul 3, 2010 3:35 pm • link • report
The roads of the District of Columbia are one of those specified exceptions because they are titled to the federal government.
by Lance on Jul 3, 2010 4:24 pm • link • report
So, you're taking the position that it's unconstitutional for the District government to pass any law that amends any Congressional enactment that deals with streets, on the grounds that streets are considered "property of the United States" within the scope of 602(a)(3), and that this property right extends to overhead wires? I find that interpretation hard to square with the power of the Council to close streets, which has been formally affirmed by Congress (Pub. L. 99-591, Sec. 133). Would that mean that DC can't use overhead wires to run a streetcar alongside current traffic, but can close the street and run a streetcar-only route with all the overhead wires it wants?
(Also, would that also mean that all the Council debates over Klingle Road were meaningless, since the right of way was deeded to the District and officially recorded as a public highway prior to Home Rule? It sounds to me that if amending the overhead wire prohibition is unconstitutional, so too was the Council vote prohibiting funding for reopening Klingle.)
by cminus on Jul 5, 2010 12:14 am • link • report
by Andrew on Jul 5, 2010 6:23 am • link • report
by Lance on Jul 5, 2010 1:35 pm • link • report
See, now that interpretation I agree with. Congress retains ultimate power over roads in DC, or pretty much anything in DC for that matter. The Home Rule Act delegates a large portion of this authority to the city government, subject to Congressional review. If Congress (not the NCPC) decides that it doesn't like the proposed amendments to the overhead wires law, it certainly is within its power to strike down the bill. NCPC is within its rights to ask them to do so.
But that doesn't mean the bill was an illegal power grab, or an unconstitutional anything. Congress has overturned perfectly constitutional District laws before because they didn't like the law in question. On the other hand, if a District law is really unconstitutional, it doesn't suddenly become constitutional just because Congress approves of it in the immediate instance. Otherwise, Heller was wrongly decided, since Congress previously approved of the District's gun control laws. Likewise, if it really were unconstitutional for the District government to prohibit funding for reopening Klingle, Congress would not be the only party with standing in the case.
It's inarguable that Congress could, if it wished, overturn the amendments to the overhead wires law. You can argue that they should. But it's really hard to make a coherent case that the amendments are unconstitutional without overturning enough settled precedent to choke a horse.
by cminus on Jul 5, 2010 6:33 pm • link • report
by Lance on Jul 5, 2010 9:13 pm • link • report
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