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Bicycling


A unanimous vote to end DC's unjust insurance law for people walking and biking

On Tuesday, the DC Council unanimously approved a bill to end the extremely unjust "contributory negligence" rule which frequently forbids people who are hit when walking or biking from collecting medical costs from a driver's insurance.


Photo by Manfred Caruso on Flickr.

The bill still has to pass a second reading in the fall, but the fact that it sailed through without debate bodes very well. Two weeks ago, the council delayed action because Councilmember Kenyan McDuffie (ward 5) wanted to introduce an amendment, but McDuffie ultimately decided not to. Mayor Muriel Bowser also praised the bill.

The council showed strong leadership to making the road fair to everyone and ensuring that people injured due to another's actions have a fair chance to get medical bills paid. The action came despite fierce lobbying from the insurance industry and AAA.

This is also thanks to many of you, who sent over 1,300 emails to councilmembers using our action tool. Many others contacted elected officials from action alerts from the Washington Area Bicyclist Association or others. Your emails made a difference—Councilmember Elissa Silverman (at large) mentioned getting "over a thousand" emails in a recent constituent newsletter. She was already a strong supporter, but other less confident ones got many emails too.

I emailed all 13 councilmembers for comments about the vote, and several replied in time.

Councilmember Charles Allen (ward 6), one of the bill's co-introducers, said, "Like many others, my family is a one-car household. Some days we bike, some days we drive, some days we Metro, and some days we simply walk. Like you, I want a city where I'm treated fairly no matter how I choose to—or need to—get around.

Silverman added, "I was excited to vote in favor of a bill that will make our insurance system more just for our most vulnerable road users. I thank Councilmember [Kenyan] McDuffie [Ward 5] and Councilmember [Mary] Cheh [Ward 3] for their leadership efforts on this common sense measure."

"I believe our contributory negligence standard most hurts our poor and low-income residents who cannot afford large medical bills or lost time at work following serious accidents," Silverman said. "For this reason, I'm particularly glad to see the Council move towards a more equitable approach that works in the interest of all District residents."

Brianne Nadeau, councilmember from Ward 1, wrote, "Ultimately, Tuesday's vote is about making the District safer for pedestrians and bicyclists. We must also continue expanding our network of bike lanes, protected when possible, so residents have safer transportation options."

Finally, David Grosso (at-large) said, "In 2014, I introduced [the predecessor of this bill] after learning that 483 cyclists had been injured in 2013 alone. ... After years of advocating for change, I am glad we're finally modernizing the District's approach. Fairness, equity and safety are the guiding principles behind this legislation and with the Council's unanimous vote and the Mayor's signal of approval, it seems we are one step closer to fully realizing these goals."

Government


DC will have even fewer vacant properties if a new law makes these changes

There are major problems with how DC counts and taxes its vacant buildings, and on Thursday, the DC Council will hold a hearing on two bills aimed at fixing them. The new laws will hold vacant building owners more accountable, but there are still ways to further the laws' reach.


This house at 5112 9th Street NW has been vacant for three years. It regularly falls "off" the vacant building list, so it isn't taxed at the higher level consistently.

Today, DC can charge higher tax rates on buildings that the Department of Consumer and Regulatory Affairs says are vacant, at a rate of five percent of assessed value if vacant and 10 percent if the property is found to be blighted. The problem is that there are a lot of loopholes that allow negligent owners to keep their properties from going on the list.

Vacant buildings aren't just eyesores. They contribute to rodent and other infestations, and according to the Office of the Attorney General's former Assistant Attorney General Michael Aniton, they are proven to have a high association with criminal activity because illegal activity thrives out of view and on private property.

Here's what the new bills are set to do:

Authored by at-large councilmember Elissa Silverman, bills B21-527 and B21-598 appear to have wide support among the council (one of the two companion bills was co-introduced by a majority of councilmembers). The legislation aims to help solve DC's vacant building problem by:

  • Cutting how long vacant properties can be exempt from higher taxes
  • Making homeowners prove buildings aren't vacant rather than making the Department of Consumer and Regulatory Affairs prove they are
  • Raising fines for not registering vacant properties
  • Giving tax rebates owners who fill vacant properties
Here's how they could be even better:

Still, the underlying issue is that some buildings and owners fall through the cracks because the penalties for keeping properties vacant either aren't enforced or aren't incentive enough to change. The following ideas would help the proposed legislation go even further in pushing vacant property owners to turn their buildings into something useful:

1. Take no nonsense when it comes to identifying building owners

Currently, some developers use dozens of LLCs to own properties, making it impossible to know who it is that routinely buys and holds vacant buildings without actually improving them. If all property sales in the District required a name, address, phone and next of kin information for every property, and if this information were publicly available, it'd be much easier to identify the vacant building code's serial violators.

This would have the added benefit of expediting communications should a property owner pass away. It would also help the city to ensure that when a property passes from an older family member to a younger one, it doesn't keep charging the reduced tax rates it does for senior.

2. Make it more expensive to leave a property vacant

Currently DCRA sends out teams to board up doors and windows of vacant properties, and DPW mows the lawn. The bill is tacked on to the owner's tax bill. Doubling the fees for these services would incentivize vacant property owners to manage these issues on their own or to return the property to active use.

3. Penalize banks who back vacant owners

Banks found to be lending to LLCs that own vacant properties should pay the District an additional tax to cover the costs of fire and rescue that may be needed on these properties—and to make them want owners to move properties into use.

4. Reinstate a tax on vacant lots

In 1990, the District established a tax of $3.29 for every $100 of assessed value on vacant lots without structures, also known as Class 5 properties. The tax was increased in 1994 to $5.00. At the time the tax was raised, then-Mayor Sharon Pratt Kelly stressed the importance of the tax in providing incentives for owners to eliminate blight and increase the supply of affordable housing.

In 1999, however, officials did away with this property tax classification. The DC Building Industry Association (DCBIA) argued that taxing vacant parcels was counterproductive "at a time when the market is down." The market is no longer down, yet vacant parcels still blight our communities without any penalties being assessed to the owners. It is time to reintroduce the Class 5 tax rate.

5. Require complete transparency at DCRA:

This is the most important issue not addressed by the legislation. DCRA's Online Building Permit Database has been "offline" for over 130 days now. The public has a right to see what fines are being issued to vacant and blighted properties, dates of inspections, and findings of inspectors.

Further, DCRA removes every vacant and blighted building report after six months, so that the public can't see the history of vacant buildings. We propose that these records be maintained online, publicly available, for five years so that the public can be confident that vacant property owners are paying their fair share for the burden they have put on the community.

The DC Council will hear testimony on Thursday

We look forward to testifying at the DC Council Committee on Business, Consumer, and Regulatory Affairs's public hearing on bills B21-527 and B21-598 this Thursday at 10 am at the Wilson Building. Please join if these issues interest you. If you wish to testify, contact Faye Caldwell, at fcaldwell@dccouncil.us.

Development


Help us map out DC's vacant buildings

DC doesn't have an accurate count of how many vacant buildings it has, which means lots of missed opportunities for more tax revenue or new housing. We've created a map of the vacants the city knows about. Tell us about the ones that are missing, and we'll send the full list to the DC Council before it votes on a law to fix the counting problem.


Photo by NCinDC on Flickr.

We've written about problems with DC's system of accounting for vacant buildings and enforcing the regulations aimed at them a couple times over the past few months. It's a mess of loopholes where owners can skirt detection and penalties by doing things like applying for work permits but not doing any actual work for years.

In a place like DC, where space for new housing is at such a premium, this is infuriating.

DC's Department of Consumer and Regulatory Affairs publishes lists every year showing which properties it has officially designated vacant and blighted (which means a building is a threat to health and safety). When a building goes on the list, its owner has to pay higher tax rates of 5% for vacant buildings and 10% for blighted.

While the agency's count is far from complete (which is a significant part of the problem), we thought we'd start by mapping out what it has provided:

Map by Thad Kerosky (@thadk).

Remember, these are not "For Lease" buildings, vacant lots, or buildings under construction. These are buildings that 1) have no occupants, and 2) have an owner who is not actively pursuing construction or new tenants.

DCRA most often investigates a building after receiving a report from a neighbor or agency, though many people will tell you they have filed reports repeatedly with little reaction from the agency.

Get out your red pens... we can correct this!

On Thursday, July 14th, the DC Council's Committee on Business, Consumer, and Regulatory Affairs is having a hearing on a series of bills that would fix many of the problems with DCRA's current system. Greater Greater Washington would love to submit testimony in support of that legislation, but we need your help.

If you know of or suspect a vacant building nearby, use the search function above to see if DCRA has already classified it as such. If it hasn't, fill out the form below and help us collect further evidence that this system needs fixing.



Bicycling


DC could end its most unjust rule of the road now. Ask the DC Council to delay no longer.

A man named Kevin Washington was riding his bike on 19th Street NW toward M Street NW. As far as anyone knows, he was obeying every traffic law. He was in the street; he was in the right lane; he wasn't speeding.


Photo by Pedal_Power_Pete on Flickr.

A trash truck was in the middle lane, the one to his left. Suddenly, it turned across his path and hit him.

In a subsequent lawsuit, DC's highest court ruled that even with all of these facts, he still couldn't get any compensation from the truck driver's insurance, because he "was aware of the truck," and should have known that "when the truck reached M Street on a green light and proceeded into the intersection, it would either go straight ahead or turn onto M Street."

"The bicyclist, for his own safety, was obliged to pay close attention to the movements of the truck, and to anticipate the possibility that it might turn right, toward the bicycle."

In other words, it's person's fault if he gets hit while on a bike, even if he is doing nothing wrong, just because he should have realized that there was some chance another vehicle could have hit him.

This colossally unjust ruling was from the late 1980s, but insurance companies have been using the same principle in denying claims to this day. Shane Farthing posted a 2014 letter from Geico denying compensation to another person riding a bike for "failing to keep a proper lookout" when a driver veered into the bike lane.

This wouldn't matter in most states. But DC has a "contributory negligence" rule, along with only four states (including Maryland and Virginia). There, even the slightest fault from a person biking or walking (or driving) makes him or her absolutely ineligible to collect any money at all from the driver's insurance. And, as the court case above shows, courts have decided that even basically no fault is still at least a tiny bit of fault.

On Tuesday, the DC Council will consider a bill to end this phenomenally unjust law. Instead, if a person on a bike or on foot isn't more than 50% at fault, he or she can still get compensation.

Two weeks ago, the bill was supposed to come up for a vote, but a last-minute concern from Kenyan McDuffie (ward 5) derailed it (de-sidewalked it?) It's important for the DC Council to pass this bill now; an earlier version also fell apart at the last minute two years ago.

The insurance industry is fighting it—little surprise, since right now they have a law that lets them not actually do anything about some serious injuries. And AAA Mid-Atlantic is fighting it, too; it's an insurer as well as a driving lobby organization. And in contrast to many other AAAs around the country, our local chapter lacks the kind of humanity that would yield basic empathy toward those seriously injured and unable to get their medical bills paid.

Please ask the DC Council to change this law immediately using the form below. Thank you!



Development


This new law would mean a better count of DC's vacant buildings

DC probably has a lot more vacant and blighted properties than its official count says, largely because of loophopes in the counting system. A bill before the DC Council is aiming to change that.


Residents proposed ideas for ways a long-vacant property could be put to better use. Photo by Myles Smith.

In February, Elissa Silverman introduced the Vacant Property Enforcement Amendment of 2016 to work in tandem with a similar piece of legislation she introduced in 2015. Both would shift the burden of proof from DC's Department of Consumer and Regulatory Affairs to the property owner, meaning it'd be on the owner to show that a buildint isn't vacant rather than on the city to show that it is.

This change would make building owners much more accountable, as well as strengthen DCRA's ability to enforce existing vacant and blighted properties laws.

First, a quick recap of the current situation

Under current law, properties determined that DCRA's Vacant and Blighted Enforcement Unit determines to be vacant are taxed at elevated tax rates of five percent of assessed value if vacant and 10 percent if the property is found to be blighted.

But the process for classifying a property as vacant or blighted and then maintaining the property's classification is onerous; District law states that the Mayor is the only person in the city who has the authority to list a building as blighted, and there are a number of loopholes in the law that allow negligent owners to avoid elevated tax rates.


A vacant building at 824 Kennedy Street NW. Photos by the author unless otherwise noted.

Every six months, DCRA has to reassess the property and determine that it is still vacant and/or blighted. That means that when a building goes onto the list, chances are high that it will revert to the normal non-vacant, non-blighted tax rate even if the owner does nothing at all.

We estimate that there are as many as 5,000 vacant and blighted properties in the District, a number far too large for the small staff of DCRA's Vacant and Blighted Enforcement Unit to keep a handle on.

Silverman's bills do four things:

It reduces from three years to two years the maximum amount of time a vacant property can qualify for an exemption from higher taxes.

  • Currently, property owners can get exemptions from higher tax rates for up the three years by filing for work permits that cost a fraction of the potential tax penalty. In practice, these exemptions can last much longer than three years, as David Sheon and I have documented in a number of cases. There is no requirement that any actual work be done to earn the exemption.

This vacant building at 5112 9th Street has been vacant for three years, but it regularly falls off the list and its owner doesn't get taxed at a higher level consistently. Neighbors complain of loiterers and drug activity on the property.

It shifts the burden of biannual proof that the building is vacant or blighted from being the responsibility of DCRA inspectors and onto homeowners.

  • As the law stands, DCRA has to inspect every one of the 1300 properties on the list plus any new properties every six months. This bill shifts the burden off of DCRA and onto the owners of vacant properties by making them demonstrate with utility bills that the properties are no longer vacant.
It raises fines for failing to register vacant properties or allow DCRA to inspect them.
  • Accepting a fine is often easier and less expensive than registering a property as vacant. This bill reverses those incentives, making it easier for DCRA to maintain accurate lists with up to date information and to take enforcement actions when necessary.
It provides positive incentives by allowing an owner of a vacant property who follows the law and fills the vacancy within a year to receive a rebate of one year of vacant property taxes.
  • There is currently no mechanism for reimbursing owners of vacant and blighted properties who remediate blight and fill vacancies. This law will provide a strong incentive for owners to move quickly and do the right thing.

A vacant building at 615 Jefferson Street NW. Note the stop work order in the window.

The DC Council will take the next steps in July

The Council has scheduled hearings on the proposed legislation for July 14. Hopefully, we'll see the bill brought up for a vote following the hearings.

While this bill does not address all of the loopholes, it does fix the most obvious flaws. We are pleased to see this development, and urge Council to add the additional amendments needed to address the above listed issues.



Bicycling


DC Council postpones fixing an injustice to pedestrians and cyclists because Kenyan McDuffie's dog ate his homework

I'm on vacation in Copenhagen, but am writing a post anyway )using a Danish keyboard where the punctuation is all in a different place= because I'm sufficiently annoyed at Councilmember Kenyan McDuffie. He seems to have just read a very important bill to protect people walking and bicycling at the very last minute, then asked for an extension because it didn't say what he thought it did.


DC's contributory negligence debate wouldn't happen here in Copenhagen. Photo by the author.

A quick history here. Bicycle riders have been talking about the unjust "contributory negligence" rule for years. This rule says that if someone is even 1% at fault for a crash, he or she can recover nothing from the insurer of, say, a driver who hits and seriously injures him or her.

Two years ago, Tommy Wells (ward 6) was chairing the committee with jurisdiction to change the rule, and he tried a bill to change to "comparative negligence," where you can recover in proportion to your fault (if you're 25% at fault, you could recover up to 75% of your injuries). But Councilmember Mary Cheh (ward 3) opposed the bill, as did trial lawyers, because it would interfere with another legal doctrine called "joint and several liability." You can learn more about this here.

But suffice to say, there were two possible ways to fix the problem, and the one Wells was promoting didn't have political support. Cheh promised to write a bill that fixed her concern, and she then introduced it the following year, in January 2015, along with Jack Evans (ward 2), David Grosso (at large), Anita Bonds (at large), and Charles Allen (ward 6 and Wells' successor).

Here's a chart by David Cranor explaining the difference between the two bills, in terms of how much a victim can recover based on his or her fault under current law, the 2014 bill, and the current bill.


Here, the X axis is for how much the cyclist was at fault, and the Y is for how much the driver has to pay. The red line shows how the law works today, the green one explains a 2014 bill that didn't pass, and the purple and blue ones show Kenyan McDuffie and Mary Cheh's proposals, respectively. Graph by David Cranor.

Kenyan McDuffie was now chairing the committee with jurisdiction, and nothing happened for over a year. The committee then marked up the bill on April 21, 2016. The committee report endorses the bill, saying:

The Committee finds, based on the testimony, significant risk of injury, and national trend, that the District of Columbia law should institute a modified comparative negligence standard for bicyclists and pedestrians in the District. Therefore, the Committee recommends that the Council enacts Bill 21-0004, the "Motor Vehicle Collision Recovery Act of 2016."
Suddenly, the bill is in crisis

Monday night (Copenhagen time, anyway), Martin Di Caro broke the news that McDuffie was suddenly concerned about the language of the bill. David Cranor breaks down McDuffie's apparent concern, which is that someone 10% at fault might be able to recover more than 90%. McDuffie wants the purple line in the graph above, where the recovery slopes down to 50% and is zero after that.

But the sloped-line approach failed two years ago. Suddenly it seems we're back where we were then, with some councilmembers willing to support one solution, some wanting another, and not enough for a single solution.

The Washington Area Bicyclist Association says it supports either approach, but is insistent that one of them be enacted. I might not be seeing everything, being in Denmark let alone not privy to conversations between McDuffie and Cheh, but it sure seems like McDuffie, after sitting on the bill for 15 months, suddenly read it for the first time very recently, realized it said something different than what his own committee report endorsed, and got cold feet.

The council has now postponed debate on the bill for two weeks, until July 12.


Photo by the author.

McDuffie needs to get this solved in two weeks

One of my elementary school teachers had a sign with the old phrase, "Lack of planning on your part does not constitute an emergency on my part." This is like the student who procrastinates on an assignment until the last minute, then needs an extension. Only McDuffie is a very smart professional legislator with extensive legal experience and staff who also have law degrees.

But fine, McDuffie got his extension. It will mean cyclists and pedestrians are in jeopardy for two months more, because the council can't take a second vote until September thanks to its August recess, but they've been waiting years for a fix.

If McDuffie decides to go along with Cheh's approach, great. If he can convince her and a majority of the council to go with another solution palatable to WABA, that's also fine. But what won't be fine is if two weeks pass (during which time there's a holiday, by the way) and then the council is still not ready to move forward. Two years ago, the bill got delayed two weeks also, and instead of then passing, it was delayed more and more and ultimately almost two years.

If that happens because McDuffie wasn't paying attention, this will all be on him, under the "you break it, you buy it" doctrine. It would reflect very poorly on him. Fortunately, he has several ways out of looking bad—just get some dmn bill passed )where the heck is the asterisk on this keyboard=, either Cheh's version or something else that has seven votes.

To stay up to date on how this unfolds, fill out the form below. Meanwhile, I'll go back to walking the streets of Copenhagen, where Danish law places the presumption of fault on the driver in any crash. Hey, how about amending the bill to say THAT instead?



Bicycling


DC's harmful traffic law needs to go, one way or another

If a driver hits you while you're walking or biking in DC, the law makes it almost impossible to collect from the driver's insurance. A bill to fix that is suddenly in jeopardy just hours before a scheduled vote. Please ask the DC Council to move it forward.

As of now, DC's "contributory negligence" law says that if a person on foot or bike who is involved in a crash is even one percent at fault for what happened, they can't collect any damages. The Motor Vehicle Collision Recovery Amendment Act of 2015, which is scheduled for a vote today, would let people collect damages as long as they were less than 50% at fault.

Today, Councilmember Kenyan McDuffie plans to introduce an amendment that would change exactly how much a person could collect, using a "comparative negligence" standard that basically means that a person's claim to damages would be proportional to their fault in the crash. It looks as though Councilmember Mary Cheh would oppose the bill if it includes McDuffie's amendment.

Efforts to end contributory negligence, which really does have harmful effects, have been going on for years. There are credible arguments for both McDuffie's and Cheh's positions on how to word the new law, but we need to pass one or the other.

With or without the amendment, the proposed bill will improve the rights of pedestrians, cyclists and other non-motorized road users on DC's streets. That is very much needed, especially as the number of people who use our streets for something other than driving continues to swell.

Update: Councilmember McDuffie moved for the Council to vote on the bill on July 12, and his motion passed.

This morning, 75 people sent 450 letters to Councilmembers urging them to do away with contributory negligence, one way or another. Thank you for your efforts, and look for more from Greater Greater Washington on how pass the bill as the vote nears.

Bicycling


DC is on the verge of ditching a harmful traffic law

Right now, DC has a law that keeps drivers from being held responsible for damages when they harm vulnerable road users. After years of organizing and effort, the DC Council is about to vote on a proposal to change this. You have a chance to speak up.


Photo by mjmonty on Flickr.

Traffic collisions happen every day. Sorting out who is responsible for the damages afterwards is a complex job that often involves the police, insurance adjusters, lawyers, and even judges and/or juries. In our region, however, a strict legal standard called "contributory negligence" has made things harsh, but simple: If you are even 1% at fault in a collision, you cannot collect any damages.

If that sounds weird to you, you're not alone. The District, Maryland, and Virginia are among the last holdouts in the US to use this standard. Forty-seven other states have switched to a more common-sense standard called "comparative fault," where damages are assigned in proportion to blame.

I shared my own personal story in a a recent post about how I came to learn about this obscure legal topic—the hard way, courtesy of a minivan driver, while I was riding my bike. While I am grateful I survived and recovered, I know I'm not alone, and others aren't as lucky as me with the court system. That's why myself and others have been advocating since 2014 for the District to adopt the "comparative fault" standard for pedestrians and cyclists who are hit by drivers.

Road users who don't have insurance adjusters or legal representation to advocate on their behalf are victimized a second time after a collision when their claims for damages are denied because insurers are confident most victims will not have the evidence to prove they are untainted by even 1% of fault.

Various DC Council members have explored legislation to make this change, but have faced stiff opposition from AAA and the insurance industry, who can afford multiple full-time lobbyists. However, patient and persistent advocacy from leaders on the council and community groups like WABA and All Walks DC have brought us to the brink of victory.

On Monday, the DC Council's Committee of the Whole scheduled the Motor Vehicle Collision Recovery Amendment Act of 2015 for a full Council vote on Tuesday, June 28, 2016.

On top of making it so a person on a bike or on foot who was contributorily negligent in a crash with a motor vehicle would still be able to collect damages if they were less than 50% at fault, the bill makes it clear that it covers people using non-motorized vehicles outside of just bikes (or people on foot), and retains what's called the "last clear chance" doctrine, which says that even if the person who was hit was contributorily negligent, the person who hit them can still be responsible if they had a clear chance to avoid the collision.

If you care about this issue, now is the most important time to let your councilmember know that you support fairness for pedestrian and bicycle crash victims. You can rest assured that they are hearing from the insurance industry, so let them hear from you too.

Politics


Silverman, White, Gray, and White can form a paint caucus on the next DC Council

Tuesday night, three incumbents lost their primaries for re-election to the DC Council: Robert White beat Vincent Orange at large, Vincent Gray unseated Yvette Alexander in Ward 7, and Trayon White took out LaRuby May in Ward 8. Many observers noticed that there's something similar about all of their last names: They're (achromatic) hues.

We supported Robert White and Gray, and from a policy standpoint, this election means a big step up for the quality of the DC Council. White and Gray will likely cast many better votes than Orange or Alexander would, and write better quality, better thought through legislation as well.

But putting all of the serious stuff aside for a moment, after each election recently I've made a graph of the number of elected officials whose names are also on the Photoshop palette.

While Orange, the most colorful sitting member (literally) lost, the three new ones bring the total up to four, the all-time high last achieved in 2011. That's the three victorious challengers plus Elissa Silverman, who came onto the council two years ago.

(Note that these folks haven't technically won election; they all are on the ballot in November. But in overwhelmingly Democratic DC, a Democrat is virtually assured of winning the general election.)

This chart excludes Carol Schwartz, whose name derives from the German word "schwarz," meaning black. She was on the council from 1985-1989 and again from 1997 to 2009, when Michael Brown defeated her for a non-Democratic at-large seat.

Are there any more Quentin Tarantino characters waiting in the wings for 2018? There's often speculation about a comeback for Kwame Brown or Michael Brown (which, let me say, would be a terrible idea). Orange also could seek another seat in the future; it wouldn't be the first time he left the council and then returned.

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