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Development


Supreme Court limits communities' control over their growth

You've probably heard a lot about the Supreme Court's decisions last week on the Voting Rights Act and same-sex marriage. But the court also decided a case on planning law which could make it more difficult for communities to negotiate public benefits during the process of land development.


Photo by Uncle D on Flickr.

Last Tuesday, the court released its decision in Koontz v. St. Johns River Water Management District, a planning law case from central Florida. The court ruled that two important tests must apply to a common technique called "monetary exactions."

An "exaction" is when a city or county requires a developer provide something of value, generally real estate or money, to mitigate negative impacts of a planned project in return for a permit. For example, a planning agency could require the developer of a residential subdivision to dedicate some land to protect waterways from runoff.

This case concerns whether a particular type of exaction is the same as taking of property, which the Fifth Amendment forbids without "just compensation."

The facts of the case

Koontz purchased 15 acres east of Orlando. Most of the property is wetlands. The St. Johns River Water Management District is responsible for preserving Florida's wetlands in that part of the state.

In the mid-1990s, Koontz applied for a permit to build on 3.7 acres of his property, including some wetlands, but offered to place a permanent conservation easement over the rest. The Water Management District said that wasn't enough. They wanted no net loss of wetlands.

They gave Koontz two options: he could pay to restore wetlands nearby, or he could limit his development to just 1 acre and conserve the remaining 14 acres. Koontz said no to both, and his permit for development was denied. He sued, and the case slowly made its way to the Supreme Court.

Takings and regulatory takings

Most takings involve eminent domain. For example, if the transportation department wanted to build a road across your property, you could sell it to them. If you don't want to sell, however, they can still take your land, but they have to pay you for it.

What if land isn't literally taken from a property owner, but the use is restricted so that the owner is giving up some property rights? That's called a "regulatory taking." It's when a regulation reduces the value of property.

The Supreme Court says that regulations become takings when they involve something physically occupying the property (like Loretto v. Teleprompter Manhattan, about installing wires on a building) or when they "go too far" (Pennsylvania Coal Co. v. Mahon. Unfortunately, it can be difficult to determine what is going too far.

Exactions

While the court recognizes that some exactions are necessary, sometimes they count as takings. To decide this, the Supreme Court established criteria known as the Nollan and Dolan tests.

In Nollan v. California Coastal Commission (1987), the court ruled that there had to be an "essential nexus" (relationship) between the regulation's intent and the exaction.

The Nollans wanted a permit to build a new beachfront home in Ventura County. The California Coastal Commission required they dedicate a public easement for pedestrian access along the beach portion of their lot as a tradeoff for blocking the view of the water from the street.

The commission claimed that pedestrian access offset the loss of visual access, but because the Commission had an ongoing program to obtain beach easements, the court decided that the required easement did not really mitigate the impact of granting the building permit. Thus, it counted as a taking.

Later, in Dolan v. Tigard (1994), the court introduced a new test, "rough proportionality." Under that test, the exaction required by a regulation needed to be roughly proportional to the impact the regulation was addressing. The government must actually quantify that impact before the exaction, rather than simply make an argument after the fact.

Specifically, Dolan wanted to enlarge her hardware store. The city of Tigard, Oregon required her to dedicate land to build a greenway (for flood control) and a bike path across her property. The court ruled that while it the bike path may indeed offset any increase in traffic, Tigard had not actually done an analysis to show that the requirement was a reasonable way to mitigate the increased traffic.

As with the Nollan case, the court said that if the city were simply requiring Dolan to dedicate the land because the city needed it for the bike path, then the city should pay for the land. Without an analysis, the the city can't know whether the requirement is roughly proportional to the harm it seeks to mitigate.

While the exactions in Nollan and Dolan involved dedicating land for some purpose, exactions can also be monetary: regulations can require land owners to pay for something, rather than giving up land.

An example of a monetary exaction

Since this is fairly complex, let's take a look at an example.

A developer wants to build a 2 million square foot shopping center in an area with no transit. The two roads passing the site are both two lanes wide. In its analysis, the planning department finds that the shopping center will increase car traffic by 40%.

To get the development approved, the planning agency asks the developer to pay for stoplights at each of the shopping center's entrances, add turning lanes from the main road, build sidewalks, and rebuild the intersection, which planners expect will increase road capacity by 35%.

Those exactions pass both tests. There's a relationship between the development's impact (more car trips) and the exaction (more road capacity). And there's proportionality because the traffic is expected to increase by 40% and capacity will increase by 35%.

But if the developer had to dedicate land for a new school, a court could find that an unconstitutional taking because a shopping center doesn't add students, so there's no relationship between it and needing more schools.

Or, if the shopping center is on a parcel where the master plan showed an interchange, and the agency requires the developer to build the interchange without any analysis of its effect on traffic, the court would conclude that the city is requiring the interchange because of the master plan, not to mitigate the traffic from the shopping center.

What does Koontz mean for communities?

The court made two key rulings in Koontz. First, the Nollan and Dolan tests apply to monetary exactions just like they apply to land dedications. Secondly, the Nollan/Dolan tests apply even when the permit is denied (and therefore there is no taking).

The court did not actually rule on the merits of the case. Koontz's case will have to wend its way through a few more courtrooms before he can determine whether he deserves compensation from the Water Management District.

Since there is no longer any doubt that the Nollan/Dolan tests apply to monetary exactions, courts will have to consider whether there is a nexus between requiring Koontz to pay for offsetting his destruction of wetlands and the Water Management District's goal of protecting wetlands. There also has to be proportionality. Koontz was proposing to destroy about 2.7 acres of wetland. How many acres of wetland restoration would his exaction have funded?

More importantly, what does this ruling mean for other planning agencies and property owners? Justice Samuel Alito says it prevents local governments from overstepping their bounds:

By conditioning a building permit on the owner's deeding over a public right-of-way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government's demand, no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.
Some in the planning community believe the Koontz decision will hamstring planners. Reading the excerpt above, it looks like if a planning agency demands an exaction that might not meet the tests even in the opening round of a negotiation, the agency could be opening itself up to litigation.

Because monetary exactions have not always been viewed through the perspective of Nollan and Dolan, some jurisdictions may have regarded them as a way to negotiate for improvements. Under Koontz, courts may regard some attempts to bargain with developers as asking too much.

What can local governments ask for? Could growth management programs, like those that require developers to pay to help preserve agricultural land, be at risk? Will Virginia's system of proffers, where developers offer dedications as part of the rezoning process, stand up to legal challenges?

The American Planning Association worries that this decision will make some agencies afraid to even propose exactions. The decision does not make it clear what kinds of exactions meet the Nollan and Dolan standard, or which payments might be grounds for takings lawsuits.

And what if permits are denied? Do local governments have to pay for exactions they never actually received? For takings that never occurred?

This decision does not do much to clear the waters. In fact, it has clouded them up significantly. Only time will tell whether this ruling opens local governments up to more litigation or whether it stops them from trying to regulate certain types of impacts altogether.

Government


A copy of DC's laws is now free and open

After open data advocates pointed out how ridiculous it is that private companies have a copyright on the only publicly-available versions of DC's laws, DC Council General Counsel David Zvenyach helped make a public domain version and posted it online.


Photo from BoingBoing.

Tom MacWright explained the problem last month. DC, like many governments, contracts with a company (in this case LexisNexis) to compile all of the laws and keep them updated as they change. They post the laws online, but with licenses that restrict your rights to reuse the information, even though it's the public law.

Rather than ignoring the problem or issuing silly legal threats against people who were digitizing the code without permission, Zvenyach worked with the advocates to create a version of the code free of these restrictions.

Mike Masnick writes at TechDirt:

Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.
Tom MacWright notes that this is just one step:
There are a few things that this isn't: it isn't the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn't up-to-datethe council is fast-moving and this is just a snapshot. In time we'll fix these problems too.
What can people do with an open source set of DC laws? We can think of a lot of things, but the best part is when people do things we don't think of. Some commenters on MacWright's post wondered why this matters; can't you just find the code on the existing website? Yes, you can't link directly to a part of the code, and can only download pieces in Microsoft Word, but so what?

So what is all the ways someone could build better tools to make it easier to find the laws. Someone already made a tool that's for some purposes better than the official site. Or people could write automated programs to compare the laws on some topics, like yielding to pedestrians, to those in other states. (Hey, that would be a great idea! Has someone done that yet?)

Do you have ideas or want to implement some? MacWright is organizing a hackathon on Sunday. If you build something neat with the code, let us know and we'll show it off here.

Parking


Can the Anacostia Playhouse escape from zoning hell?

Some District leaders are discovering that there really is a serious cost to having an outdated zoning code. The Anacostia Playhouse might face up to 6 months of delays because of silly parking regulations, and there's not much the DC Council can rightfully do about it.


Image from the Anacostia Playhouse.

The City Paper reported last week that the playhouse, which expected to open in April, suddenly discovered its parking didn't count toward its parking requirement. That's because the parking is across an alley from the theater but the law says that required parking spaces have to be on the same lot as the building.

This is a stupid rule, and the Board of Zoning Adjustment will almost certainly grant an exception. But that takes months, and meanwhile a number of productions have already contracted to use the playhouse.

Councilmembers Marion Barry and Tommy Wells introduced emergency legislation to help the Playhouse move forward. It's a worthy impulse, but the council doesn't have power over zoning, and finding a way to grant an exception in this one case could set a dangerous precedent for others.

DC needs to fix parking minimums, and quick

First of all, this clearly shows why we need to reform the zoning code. It also shows the consequences of overly restrictive rules.

Many people like rules that force almost any development to request zoning relief, because it gives residents a chance to speak up at a hearing or for neighborhood groups to ask for changes or concessions. However, such a process also forces property owners to hire lawyers and spend months to get through these hearings.

Perversely, that is a lot easier for the big project which will have a greater impact on the neighborhood than for a smaller property owner, or in this case, a nonprofit opening with city financial assistance in an area which has struggled to attract many types of businesses.

The council can't, and shouldn't, override

Okay, but until we fix zoning, does the Playhouse have to suffer? Wells (ward 6) and Barry (ward 8) introduced emergency legislation to let the project move ahead, but as the City Paper also reports, Council Chairman Phil Mendelson refused to put it on the calendar. Is Mendelson being a scrooge? Not really.

That's because the DC Council does not have power over zoning. Before Home Rule in 1974, the federal government controlled all zoning. Congress didn't entirely trust DC's elected representatives to make land use choices, so it gave that power to the Zoning Commission, a 5-member board with 3 people appointed by the mayor and confirmed by the council, and 2 federal representatives.

The DC Council passes plans, like the Comprehensive Plan and individual Small Area Plans, which the Zoning Commission is supposed to follow. But the Zoning Commission actually decides whether to rezone any property or change the regulations. The BZA is a second hybrid federal-local board which rules on individual variances and exceptions based on the zoning code.

The pending zoning update doesn't need any approval from the counciljust the Zoning Commission. While some councilmembers (like Muriel Bowser) have nonetheless been catering to residents who oppose the update, wiser councilmembers have been staying out of this contentious issue.

Barry's and Wells' original bill would allow DC's Department of Consumer and Regulatory Affairs (DCRA) to give the Playhouse permits to move ahead, but only temporarily. If the Playhouse then gets the zoning relief it needs, it can keep moving ahead; if for some reason it doesn't, it would have wasted a lot of time. But since the ANC, the Office of Planning, and basically everyone else supports the Playhouse's petition, they'd probably be okay.

Override this time, and what's next?

Still, the bill flirts with a dangerous precedent: directing DC agencies to partly disregard zoning. The Zoning Commission has no police force to enforce its orders. It relies on DCRA to deny permits that don't have zoning relief. We don't want to go down a slippery slope where the Council passes laws telling DCRA to grant permits for projects that violate zoning.

It could work the other way as well. Residents angry about a proposed apartment building at Connecticut and Military asked Councilmember Mary Cheh (ward 3) to intervene and even pass an emergency law directing DCRA to block the project, at least temporarily, until there can be more community meetings. Cheh rightly pointed out that she doesn't have that power.

In one of her responses to neighbors, Cheh wrote,

The Council has no authority over the zoning code: the Home Rule Act defined the Council's legislative authority, but made it clear that the Zoning Commission has full authority over zoning matters. The issue was addressed directly by the Court of Appeals of the District of Columbia, who concluded that "the Zoning Commission is the exclusive agency vested with power to enact zoning regulations." ...

You ask that I petition the Mayor to direct the agencies not to issue any more permits until the concerns are addressed. Again, because there is no discretion in the issuance of permits, an intentional delay could open the District up to liability for takings and discrimination. The law simply does not allow the remedy that you seek.

If the council had passed Wells' and Barry's Anacostia Playhouse bill and someone had wanted to sue, there's a good chance the DC Court of Appeals would have struck it down. If they found a reason to uphold it, that would be even worse, because then it would create an opportunity for council meddling in zoning cases in the future.

This bill is probably safe because it doesn't seem like anyone actually has a problem with the project, but it's not a good idea to possibly set a dangerous precedent just because this specific case is uncontroversial.

There might be other fixes

This case does point to a flaw in the zoning process, in addition to the silly parking rules. Perhaps there should be a way for a property owner to petition for an expedited hearing when a longer delay would cause some hardship. Other processes include such shortcuts.

In fact, the zoning update doesn't do that, but it does allow the BZA to add a "consent calendar" where they can move through uncontroversial matters much more quickly. Perhaps that can help as well for the next Anacostia Playhouse.

And we need to get rid of parking minimums. This case shows how, while stricter rules can sometimes prevent bad projects, they also can at times interfere with good ones. Zoning restrictions have a cost.

As for the Playhouse, apparently the problem is that the building and its parking aren't on the same tax lot. A public alley separates the two. The DC Council does have complete control over tax lots and public alleys, unlike with zoning. Perhaps an emergency bill could temporarily close the alley, transfer the alley property to the Playhouse with a permanent public easement to let the public continue to cross it, join the two into one tax lot, then specify that everything goes back to the status quo ante, say, one year from now? Then DCRA can declare that the property meets current zoning and grant permits without messing with zoning at all.

That's still messy and an awkward thing to do by emergency legislation, but to me it's less dangerous than having DCRA issue a permit for a property that doesn't meet zoning. Or perhaps the clever attorneys in the council and DCRA could come up with another way to make the property conform to zoning while we wait for the slower process of making zoning conform to common sense and the needs of our city today.

Government


DC's laws aren't yours

There's a deep, persistent, and crippling problem with the laws of DC: you can't download a copy.


Photo by PublicResource.org on Flickr.

Due to a weak contract and a variety of legal techniques, it's not possible to create better ways to read the law or download it for offline access, or even to try to do better than the crummy online portal that serves as its official source.

It also means that it's hard to discuss legal matters online, since you can't link to specific lawsthis Salon.com article about David Gregory has had a broken link to the law in question since 40 minutes after it was posted, months ago.

How the law became scarce

How did this happen? It's a tricky answer of access, ownership, and contracts.

The DC Council writes and publishes bills, which are additions and subtractions to the law itself. The law is compiled by a contractorpreviously WestLaw, now LexisNexis. So the contractor holds a complete copy of the law.

The contractor publishes a few different versions of the "compiled law," each of which with restrictions:

Unfortunately, courts have upheld these types of restrictions in the CD and website Terms of Service. They get further support from the wire fraud statute, which prosecutors used in the Aaron Swartz case to escalate charges to felonies. And in all of these versions, the contractor tries to claim copyright through compilation copyright and additional content like citations and prefaces.

In the face of these strong guards against freeing the law, the most reasonable avenue for creating a freely-accessible copy is buying and scanning the printed copies, which is exactly what some citizens are starting to do.

Why this matters

This has effects in many places. Advocacy organizations pushing for changes can't reference laws by linking to them, so they have to copy & paste relevant sections and hope that people trust their versions. Of course, when laws go out of date, these copy and pasted guides stop working.

The goal of better educating the police about laws (like the rules of the road for bicyclists) is harder. Police can't have an offline copy of the law for quick access in the field, and the online version is near-useless on smartphones.

It's also locking the DC Council into using a contractor for this purpose. DC's contracts with WestLaw and LexisNexis aren't strong enough to force the contractors to provide them with a copyright-cleaned version, so the council itself doesn't have a compiled copy of the law that they can publish by themselves if they want to take this in-house.

What's Next

This is a hard problem to unwrap and fix, and there are multiple efforts afoot.

Waldo Jaquith is building The State Decoded, an open-source system for storing and displaying state codes. It's already deployed with Virginia's laws. Public Resource.org is working on the long task of scanning and digitizing the print edition. And a group of residents are encouraging the council to write a better contract than the current one with LexisNexis, which doesn't provide for copyright-free copies.

Meanwhile, it'll be months or years until it's possible to download DC's laws onto your iPhone and clarify whether it is, indeed, legal to bike on a sidewalk (sometimes) or drink in public space (never).

Transit


Bus sideswipes disabled woman's van, jury awards $8,500

In August 2010, a Metrobus sideswiped a van with a disabled woman inside. Last week a jury heard the woman's lawsuit against WMATA, and awarded the woman a small sum$8,500. I was one of the 8 jurors.


Photo by dctim1 on Flickr.

The woman's attorney, clearly disappointed, asked for every juror to stand up one by one and affirm their agreement with the award amount. However, it was contempt for the woman's attorney, and the physician the attorney had sent her to, that led to most of the debate in the jury room.

The jury deliberations were tense at times, as jurors hearing the same testimony drew very different conclusions. A picture of what Washington is becoming formed amidst jurors' arguments, and I wondered if a jury 30 years ago might have decided the case differently.

Before the trial, I told the judge that I had written several articles on Metro, some critical, for a local blog. I suspected that WMATA's attorney would strike me from the jury as a result. However, after describing the topics of each article to WMATA's attorney, both attorneys declined to strike me from the jury.

After trials are completed, jurors are permitted to discuss or not discuss the trial as they choose.

What happened?

We heard the testimony of the plaintiff, Cynthia Lee, a 57-year old African American woman who lives in southeast DC. Ms. Lee has lived on disability income for 23 years since a 1990 car accident left her in constant pain. She has had several neck surgeries, and is seen regularly by orthopedic surgeons and pain specialists at GWU.

She lives with her fiancée of 7 years, Calvin Thomas, and his 7-year old granddaughter. A home health care aide helps her on weekdays. One juror said that "she receives better medical care than our troops coming back from Iraq."

The morning of the crash, she took MetroAccess from her home to GWU where her doctor discussed her continued pain and suggested she resume physical therapy. Afterwards, her fiancee picked her up from GWU in their van and they drove towards Northeast DC to pick up his granddaughter from his sister's house.

As they crossed North Capitol Street on K Street, a D8 bus headed westbound on K Street turned left onto North Capitol. Mr. Thomas slowed his van in the intersection as cars in front of him slowed down, but the Metrobus kept turning and sideswiped the van.

The physical damages to the Metrobus and the van were slighta little paint scraped off and a small dent. It was hard to imagine that the force of the impact could have even injured passengers. The police were called, but no police report was filed.

Ms. Lee visited the emergency room at Washington Hospital Center the next day, complaining of pain following the accident, and received a CT scan. Five days after the accident, she returned to her orthopedic surgeon at GWU who assured her the rods and screws in her neck from previous surgeries were still in place.

An ambulance-chasing attorney, or a woman asserting her rights?

At some point during the week after the accident, Ms. Lee came into contact with a personal injury attorney. The attorney referred Ms. Lee to a different orthopedist in Ft. Washington, MD.

The orthopedist in Ft. Washington had an initial consultation with Ms. Lee, which cost $400. He then ordered $1,600 worth of X-rays that Washington Hospital Center had not ordered. He prescribed physical therapy of heating pads, cold packs, and electric stimulation, to be administered in his office.

3 weeks after the accident, the Ft. Washington orthopedist ordered a $2,000 MRI that showed no injury. A month and 7 physical therapy appointments later, Ms. Lee reported that her pain had not subsided, and the physical therapy ended.

Nonetheless, the Ft. Washington orthopedist brought her in for 6 additional follow-up visits from October 2010 through January 2011, none of which resulted in new diagnoses or prescriptions. By that point, Ms. Lee said her pain had subsided to pre-accident levels. The total bill? $10,200.

Judge Maurice Ross gave us clear instructions. If we found WMATA negligent in the accident, and found the accident to be the proximate cause of Ms. Lee's damages and injuries, then we must quantify reasonable medical costs, inconvenience to Ms. Lee, and any pain and suffering Ms Lee. endured.

Was WMATA negligent?

After all of the closing arguments, the jury began their deliberations with a vote on the first question. Did WMATA negligence cause the collision? 5 jurors voted yes, while 3 voted no.

I voted yes, and was surprised at the vote. Wasn't it obvious that WMATA caused the accident? Hadn't WMATA's attorney even said that he would defer to the jury's decision on negligence, that his objection was to the amount of any damages?

The 3 dissenting jurors said this was a "no-fault" accident. There was hardly any property damage at all. The parties should have just walked away.

We objected that "no-fault" accidents aren't actually no-fault, the parties just declare them to be "no-fault" to keep their insurance premiums from rising. The dissenting jurors ultiamtely agreed, and the jury assigned negligence to WMATA with an 8-0 vote.

Did the accident cause damages to Ms. Lee?

The jury then voted on whether the accident was the "proximate cause" of any injuries or damages, a vote that went down 1-7. I was the 1.

Many of the 7 jurors voting yes argued that the nudge to the van wouldn't have injured passengers, but I argued that Ms. Lee was not just any passenger. She was more susceptible to injury than most passengers. In the words of Metro's own orthopedic surgeon expert witness, she was "a compromised host."

The 7 jurors argued Ms. Lee was clearly being used by her attorney and the attorney's physician, and that no award money would ever make it to Ms. Lee anyway.

I countered that no evidence had been provided contradicting Ms. Lee's claim to be in more intense pain following the accident. WMATA didn't challenge her claim to be in greater pain following the accident. So what basis does the jury have for saying she is lying?

All 8 jurors then agreed, some reluctantly, that they must conclude that Ms. Lee suffered injuries caused by WMATA. But they were hesitant to award more than a small award, convinced that all the money would go to Ms. Lee's attorney and the Ft. Washington physician to whom she had been referred.

Jury debates the award as a picture of Washington emerges

We read through the Ft Washington physician's $10,200 invoice line-by-line. Some jurors were comfortable ordering Metro to pay for all of his costs except for the last 6 visits to his office. That added up to about $8,500. Others were opposed to any such sum.

One juror in opposition argued that it was a minor incident, and it was completely unfair for taxpayers to have to pay $8,500 for a scrape of some car paint.

I argued to the jurors in opposition that that's precisely why motor vehicle transportation is so dangerousit's unforgiving to the slightest infraction. You can glance at your phone while driving and cause multiple fatalities.

Another juror who opposed any award in the several thousands of dollars argued that we should consider what society owes Ms. Lee, and that in his judgment society owes her little. You can't quantify pain, and anyway she has been in pain for years for which society was already doing a lot.

I challenged the jurors in opposition to remember the question that we had all been asked by Ms. Lee's attorney before the trial: could we set our personal views on tort reform aside and decide on a verdict based on the judge's instructions? We had all answered yes to this question.

Our job was to assign objective values to these things, not to decide what society owed Ms. Lee or to send a statement to the judicial system with a small award.

Another juror said in frustration that he had always paid for his medical costs through college to this day, and taxpayers shouldn't have to pay Ms. Lee's medical costs.

Ultimately, the only figure we could agree on was $8,500 for her medical costs. I could have supported a larger award, as it made little sense to me to find medical costs reasonable but assign no value to the pain for which those medical costs were incurred.

Others were clearly unwilling to award a penny more, and I agreed that quantifying pain and suffering would be difficult. Ms. Lee's attorney had asked her no questions about her suffering and the consequences of the pain for her life, so we had little actual evidence on which to base an award for suffering or inconvenience.

Did the jurors' backgrounds inform their views?

The jury consisted of 5 white men, 2 black women and 1 white woman. The 2 black jurors spoke very little. 95% of the deliberations happened among the 6 white jurors.

It was clear that some jurors viewed Ms. Lee through a lens stereotyping much of Washington, an African-American in Southeast DC pulling every string in the system for her personal benefit while contributing little.

During the trial, though, a very different picture appeared to me. Ms. Lee dropped out of school in 11th grade, and still managed to become trained as a Certified Nursing Assistant and Home Health Aide. She worked in both professions until the age of 34, when the catastrophic crash in 1990 resulted in screws and rods in her neck.

She lived a quiet life for the next 20 years, in near-constant pain. She is on daily narcotics to this day to manage her pain, which she places at a 9 on a scale of 1-10. If not for her personal injury attorney, I'm confident that Ms. Lee would have filed no case against WMATA.

When you imagine walking in the shoes of someone like Ms. Lee, you realize that one man's ambulance chaser is another man's right to counsel. One man's medical expert for hire is another man's right to get a second opinion.

A jury, randomly selected from DC residents, and its deliberations provide a snapshot of how our city is changing, and how we solve bigger problems.

Sometimes I fear that the Washington that we are becoming has little interest to walk in the shoes of others, or even imagine what it would be like to do so. As DC grows, I hear too many who see our growth as a rejection of our past and of the people who built DC in the decades since Home Rule. We don't see ourselves as one city.

It was hard, on this jury, not to imagine how the jury deliberations would have been different 10 years ago, 20 years ago, 30 years ago. Can we grow and evolve as a city, and still see other residents as "in this together" with us?

Bicycling


Ask GGW: Who's at fault for causing a swerve?

Reader David G. wonders what happens if someone causes a crash, but doesn't actually hit anyone. He writes:


Photo by bondidwhat on Flickr.
This morning [Tuesday] at approximately 8:30AM, I was riding south in the bicycle lane on 14th Street, NW. Almost immediately upon crossing P Street, a cab driver who had just picked up a fare, pulled suddenly into the bicycle lane, causing me to veer sharply in order to avoid being hit. Another cyclist, who was immediately behind me also veered to avoid being hit by the cab.

As we attempted to avoid the collision with the automobile, I and the other cyclist collided. I was able to stay upright, but the other cyclist fell to the ground, scraping her side and knee and damaging her bicycle. The cab driver attempted to pull away. Fortunately, another cyclist who witnessed the incident placed her bicycle in front of the cab to prevent the driver from doing so.

The police were called to the scene and, after interviewing the parties involved, informed us that there is no violation unless there is contact between the cab and the cyclist. As there was no contact in this case, he was unable to issue any sort of ticket to the driver of the cab. Respectfully, I informed him that I did not believe that that was the correct interpretation of the law and I asked that his sergeant be called to the scene. The sergeant arrived, interviewed us again and then informed us that the first officer on the scene was correct and that there was no violation.

Is this, in fact, the law? Is nobody liable for damage in this case?

The husband of the cyclist who blocked the cab from leaving, "jrenault," posted on the BikeArlington forum about this. He said,
They're arguing that surely "failure to yield" covers what the cabbie did, but not getting anywhere. ... Apparently, according to the police officer, failure to yield must be witnessed by the officer or he can't write a ticket.
Other posters on BikeArlington suggest it might not be worth pursuing, not because the driver necessarily is blameless, but since nobody was seriously hurt, and it would be too much trouble to get the police to take action. It's also possible there is no clear answer here, and no law that speaks to this situation clearly enough.

Shane Farthing from WABA said he couldn't judge this specific incident without hearing more details, but had a broader comment about whether cyclists should want police to write tickets:

In many cases there will be some need for the officer to exercise discretion, such as whether an action was reckless or whether someone was passing too close under the circumstances. These elements are not all objectively defined. So while we want the roadways and laws to be predictable, there isn't always an objective yes/no answer to whether an action is lawful, and it's not always best for cyclists or anyone for officers to always default to issuing a citation.
We've seen several times in the past when an officer feels compelled to write a ticket, but doesn't understand the law well enough, the default ends up being to cite the cyclist, rightly or wrongly. If police always write tickets after crashes, that might mean they learn more about the laws, or it might just mean cyclists get blamed more often even when not warranted.

Still, taxis need to watch for cyclists when pulling out across a bike lane. Near-misses happen every day. Small collisions happen occasionally. The fewer of those, the less likely a serious injury or worse.

History


DC Home Rule almost had... Congress decide all criminal laws

This is part 5 in a series on the legislative history of the 1973 Home Rule Act. See previous parts on the act's bipartisan support, nonpartisan elections, the police chief, and judges.

Congress decided not to keep the police chief federally appointed when it gave the District home rule, but Congress did initially restrict DC's ability to change its own criminal laws.


Photo by much0 on Flickr.

The Home Rule Act forbade the DC Council from changing the criminal code for the first 2 years. After that, Congress tried to make it eaiser for it to overturn any criminal law change, but the courts took away that perogative in 1985.

Yes, while Congress had no problem with DC setting the laws for licensing barbers or home construction or parking, it was very nervous about letting DC change criminal offenses. Why?

A letter from critics of Home Rule fretted that the DC Council "would be able to alter, amend, repeal or supersede virtually any law including Titles 22, 23, and 24 of the criminal code. (p. 1568) The majority (Democratic) House staff responded in their own memo:

The above statement is a prime example of an assumption of bad faith on the part of duly elected official sunder the bill. It is logical to assume that the local elected government will have just as much stake in maintaining peace, law, and justice as the presently appointed officials have in maintaining the integiity of the city government. (1645)
Nonetheless, the Congressmen in charge of the DC committee acceded to this concern in their committee print, the version of the bill they brought to the floor that tried to respond to some of the opponents' arguments. In that version, the titles of the DC Code involving crimes, criminal procedure, and treatment of prisoners were part of the list of laws the Council can't legislate, such as changing the height limit or imposing a commuter tax.

The House passed the bill with a prohibition on changing criminal laws. That would have meant that Congress would be the one still setting any criminal laws in DC. The Senate version did not restrict this, and the conference committee compromised by limiting this authority for only the first 2 years after Home Rule. (2361)

One-house veto lasted until Chadha and Gary

Congress didn't just let DC have complete control over the criminal laws after that. Instead, it set up a "one-house veto." Normally, to block a DC law, both houses of Congress have to pass a joint resolution, and the President has the ability to veto that, just like with a bill. That sets a fairly high bar for the federal government to overturn a DC law.

With the criminal code, Congress decided to make it easier. They added a provision that a change to criminal law will not take effect even if only one house passes a resolution against it. This one-house veto also applied to an act changing the Mayor or councilmembers' pay. (2917)

This provision lasted until 1983, when something got in the way: the US Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). There had also been a one-house veto in place for deportation decisions: the INS could hold off on a deportation proceeding for 7 years if deportation would create "extreme hardship."

The INS used this discretion to help Jagdish Rai Chadha, who had overstayed a student visa. He had been born in Kenya to Indian parents and had a British passport, but neither India nor Britain would let him back into their nations. The House used its one-house veto to block the leniency, but the Supreme Court held that since the Constitution specifies a set process for Congressional action including bicameralism (both houses must pass the same bill or resolution) and presentment (it goes to the President for the chance to veto), Congress can't decide to elect a different process for some actions.

The decision had far-reaching consequences besides INS procedures: it ended every one-house veto, including the ones in the Home Rule Act. In Gary v. United States, 499 A.2d 815 (1984), the DC Court of Appeals (DC's highest state court) struck down the one-house veto.

Therefore, District residents enjoy the ability to elect officials who can change the criminal laws as needed. A sympathetic young Indian/British immigrant led to Congress' power over the District growing a little less in a significant area.

All numbers in parentheses refer to page numbers in Home Rule for the District of Columbia, 1973-1974, Background and Legislative History of H.R. 9056, H.R. 9682, and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, Approved December 24, 1973 (Public Law 93-198), Serial No, S-4, US Government Printing Office, December 31, 1974.

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