Advisory Neighbourhood Commissions: Washington, D.C. by Ashley Paton

Advisory Neighborhood Commissions in Washington, D.C: Effectiveness and the Impacts on the Built Environment Research Essay Ashley Paton 500489817 HST712 Dr. Joseph Tohill March 25th, 2015

Introduction The Charter Referendum of 19741 and the subsequent passing of the Home Rule Act2 in Washington, D.C saw the creation of Advisory Neighborhood Commissions (ANCs). Since their inception in 1974, ANCs have created a way for residents to provide feedback to the D.C. City Council as well as to numerous committees and boards on a range of topics including social services, neighborhood safety, and planning issues.3 It has been reported that ANCs have created “divisiveness and competition with the Council” and have added “another layer of administrative red tape” to the development approval process.4 On the other hand, some say that it has become a “useful vehicle for providing organized and focused resident views on important issues to the city government.”5 The built environment is generally defined as the combination of public and private infrastructure such as buildings, walkways, parks, roads, residences, marketplaces and transportation.6 Looking at court decisions and case law between 1974 and the present time out of the District of Columbia Court of Appeals involving ANCs, as well as newspaper articles, it is evident that although ANCs have created more opportunities for resident participation and advocacy, they have not greatly influenced the built environment of D.C.

Charter Referendum Ballot. Sample Ballot. Board of Elections for the District of Columbia (May 7, 1974) District of Columbia Home Rule Act S. 1435, Pub. L. 93-198, 93rd Cong. (1973) 3 D.C. Code § 1–309.10. (a) 4 Paul W. Valentine, “ANCs -- Unwanted Stepchildren in D.C.,” The Washington Post, (Washington, D.C.), Feb 12, 1976; ProQuest Historical Newspapers 5 Garrison, David F. "District of Columbia’s Elected Advisory Neighborhood Commissions: An Unlikely Experiment in Governance at the Grassroots." State and Local Government Review 43, no. 2 (2011): 15966. 6 "What Does the Term "build Environment" Mean?" University of Windsor. http://www1.uwindsor.ca/vabe/built-environment. 2

History & Background As an introduction to Home Rule and ANCs power within Washington, D.C., this next portion will provide an overview of the history and background of these topics. As mentioned above, ANCs were introduced with the passing of the Home Rule Act7 and were implemented through a referendum in May of 19748. Pursuant to Part A, subpart 1, section 401(b)(1)9, the Home Rule Act allowed for an elected mayor, a 13-member Council, an elected School Board and a delegate to the House of Representatives that could serve and vote in committees but could not vote on the House floor. Part D, section 73810 is where ANCs derive their power. This section states that the District’s agencies, including City Council, boards, and commissions as well as the Mayor, are to give the ANC’s issues and concerns “great weight” on proposed policy decisions relating to “planning, streets, recreation, social services programs, education, health, safety, budget, and sanitation”.11 The Home Rule Act was a long-debated and large step to autonomy from the federal government, but still has several limitations. First off, Council is prohibited from taxing non-residents who commute into the district from other municipalities for work, which means billions of dollars are lost in tax revenue as a lot of people who work in the District live in the bedroom communities that are located in different states.12 Also, as briefly mentioned above, the Delegate to the House of Representatives can only participate in debate and introduce legislation 7

District of Columbia Home Rule Act S. 1435, Pub. L. 93-198, 93rd Cong. (1973) Charter Referendum Ballot. Sample Ballot. Board of Elections for the District of Columbia (May 7, 1974) 9 District of Columbia Home Rule Act S. 1435, Pub. L. 93-198, 93rd Cong. (1973) 10 Ibid. 11 D.C. Code § 1–309.10. (a) 12 Austermuhle, Martin. "Four Decades After Getting Home Rule, The Fight In D.C. Goes On." American University Radio. November 15, 2013. http://wamu.org/programs/metro_connection/13/11/13/four_decades_on_dc_continues_fighting_for_home_r ule. 8

but cannot vote on the House floor. There is also no representative or voting member in the Senate. This lack of voting representation in both houses of Congress is the source of the District’s slogan and license plate statement “taxation without representation”.13 Another limitation of the Home Rule Act is that Washington, D.C. lacks budget autonomy and all budgets still require federal approval. In a 2013 American University Radio article, Eleanor Holmes Norton, the District’s delegate to the House of Representatives, stated that after forty years D.C is still stuck between what it deserves — full statehood — and what it can get.14 Debate surrounding statehood has been brought up several times in Congress including in 198715 as well as in November of 1993 when a vote in the House of Representatives was defeated 277-153.16 Another important aspect of ANCs is the “great weight” clause in the Code of the District of Columbia Section § 1–309.10 (d)(3)(A).17 This clause states that the issues and concerns that ANCs raise shall be “given great weight during the deliberations”18

the

government.

This

requires “acknowledging

the

Commission as the source”19 of the concerns and explicitly addressing each issue raised. The next section will look, in detail, at a variety of court cases from the D.C. Court of Appeals involving ANCs and will demonstrate how the concerns,

Craig, Tim. "Obama to Use D.C. 'Taxation without Representation' License Plates." The Washington Post, January 15, 2013. 14 Austermuhle, Martin. "Four Decades After Getting Home Rule, The Fight In D.C. Goes On." American University Radio. November 15, 2013. http://wamu.org/programs/metro_connection/13/11/13/four_decades_on_dc_continues_fighting_for_home_r ule. 15 Pianin, Eric. "Fauntroy Renews Bid For D.C. Statehood." The Washington Post, January 8, 1987. ProQuest 16 Jenkins Jr., Kent. "House Turns Down Statehood for D.C.; Both Sides Upbeat After 277-153 Vote." The Washington Post, November 22, 1993. ProQuest 17 D.C. Code § 1–309.10. (d)(3)(a) 18 Ibid 19 Ibid

issues and resulting changes that the ANCs have brought forth are minor and have not affected D.C.’s built environment to a great degree. Cases The “great weight” clause plays an important role in the following cases and is an argument that almost all ANCs, or their legal representative, use. It is demonstrated through the outcome of several precedent cases and news stories that even though the concerns raised by the ANCs had merit, they were not enough to significantly influence D.C.’s Council and boards such as the Board of Zoning Adjustment (BZA) and ultimately the Court of Appeals. Local outcry for sensitive land-uses and businesses such as strip clubs and liquor stores is not unique to D.C., but there have been many instances, including one in 1998 when residents wanted a nearby nightclub closed because of the violence it seemed to encourage.20 There was also an instance in 2013 when both local residents and business competitors raised concerns over a new type of strip club in close proximity to Georgetown, a high-income and prestigious neighborhood.21 Many ANCs have sub-committees that deal with specific issues such as economic development, planning and zoning, historic preservation and, more popular, alcoholic beverage license review committees.22. Upon a deeper look at cases such as this one, it appears that ANCs have created another avenue for NIMBYists (Not In My Back Yard) to express concerns over typical NIMBY concerns such as parking, traffic, noise, and the presence of unwanted drunks.

Lee, Jennifer. "Neighbors Want Nightclub Closed; New D.C. Law May Help Their Efforts." The Washington Post, July 16, 1998. 21 Vargas, Theresa. "Soon-to-Open D.C. Strip Club Worries Neighbors and Competitors." The Washington Post, May 21, 2013. 22 "Committees." Advisory Neighborhood Commission 6A. http://anc6a.org/committees/

6 In the following two court cases it is evident that ANC’s have had no

significant impact on the issuance of liquor licenses and therefore the built environment of the city with regards to the composition of retail and entertainment facilities. The first case, Kopff v. District of Columbia Alcoholic Beverage23 is a precedent-setting and highly referenced case that took place in 1976. The dispute was over a special class of liquor license that was granted to a business within the ANC’s boundaries. The Court of Appeal agreed with the ANC’s argument that the Board did not give great weight to their issues and concerns. Despite the strength of their arguments, the Court’s ultimate decision, which was ruled upon four years later in 1980, was to affirm the Board’s decision and grant the establishment their liquor license. Similar to Kopff24, is Donnelly v. D.C. Alcoholic Beverage Control25, where the ANC expressed concerns over the issuance of a liquor license in the area. They argued that the area was already “adequately and well served” by existing licenses and that the Board did not give great weight to the ANC’s letter which expressed these concerns. The Court affirmed the Board’s ruling and the liquor license was not revoked on the grounds that there was insufficient evidence of “an excessive concentration” of retail liquor stores in the area and that the Board did address and meet the criteria needed for determining the appropriateness of granting the application. This included providing analyses on the availability of parking, the effect on local traffic conditions, and the compatibility to the surrounding residential area. As shown through Kopff26 and 23

Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law Ibid 25 Donnelly v. D.C. Alcoholic Beverage Control 452 A.2d 364 (D.C. 1982) Justia US Law 26 Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law 24

Donnelly27, even though the ANC’s brought up valid concerns, they did not warrant any major changes to the number or type of liquor licenses. In addition to liquor licenses, zoning and planning related concerns have also been raised by ANCs. For example, in the 1978 case of Wheeler v. District of Columbia Board of Zoning28, the construction of a professional building was proposed at 1901 N Street NW. This particular lot required the issuance of a special exception, which was granted by the BZA. The ANC appealed on the grounds

the

proposed

building

being incompatible

with the

surrounding neighborhood, both architecturally and from a land-use perspective. They also argued that there would be increased traffic congestion and that the development did not comply with local zoning regulations. Similar to Kopff29 and Donnelly30, the ANC also contented that the Board failed to give the ANC's concerns “great weight”. The Court’s final decision was to affirm the Board’s granting of the special exception and subsequently, to allow the development application to move forward. The Court agreed with the ANC’s argument that the Board did not “elaborate, with precision, its response to the ANC issues and concerns”, but said the BZA treated the issues and concerns in a way that complied with the D.C. Code. Another case in 2002, Foggy Bottom Association v. District of Columbia Board of Zoning Adjustment31, was about a proposed hospital on 23rd Street NW to be built directly across the street from the existing George Washington University hospital. The issues the ANC raised and the issues that their evidence

Donnelly v. D.C. Alcoholic Beverage Control 452 A.2d 364 (D.C. 1982) Justia US Law Wheeler v. District of Columbia Board of Zoning, 12632 (D.C. 1978) Justia US Law 29 Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law 30 Donnelly v. D.C. Alcoholic Beverage Control 452 A.2d 364 (D.C. 1982) Justia US Law 31 Foggy Bottom Association v. District of Columbia Board of Zoning Adjustment, 99-AA-1105 (D.C. 2002) Justia US Law 28

and expert testimony were based on revolved around increased truck traffic and resulting threat to pedestrian safety, as well as increased noise in the area. The Court stated that the “great weight requirement, as Kopff32 makes clear, does not mean that the BZA must accept the views of the ANC no matter what”. The BZA had specifically addressed the concerns of the ANC and stated why it was not persuaded by the arguments of the ANC or their witness testimony. There had already been extensive communication between the BZA and the District’s Department of Public Works (DPW) addressing similar concerns to that of the ANC, which led to several changes including the redesign of the loading area. In this case, even though the ANC had a “unique vantage point” as residents who live, work, and shop in the area, the coordination between the BZA and the DPW resulted in more changes to the development than the ANC’s concerns. A similar case involving concern over traffic and design standards is Neighbors Against Foxhall Gridlock v. District of Columbia Board of Zoning Adjustment in 2002.33 A private school was seeking to locate in a residential neighborhood and needed a special exception granted by the BZA. Similar to Foggy Bottom Association34, there was substantial communication between the BZA and the DPW involving the "potential traffic safety problem”

and the

issues were already being addressed by the DPW. The Board’s decision of granting the special exception was affirmed and the ANC’s concerns were no more influential on the project than those of the DPW.

Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law Neighbors Against Foxhall Gridlock v. District of Columbia Board of Zoning Adjustment, No. 01-AA-53 (D.C. 2002) FindLaw 34 Foggy Bottom Association v. District of Columbia Board of Zoning Adjustment, 99-AA-1105 (D.C. 2002) Justia US Law 35 Ibid 33

9 The case of Concerned Citizens v. District of Columbia36 in 1993, also

brings up a few valid points in arguing that ANCs have limited influence on affecting the built environment of their respective area. The Court stated that in order for the ANC’s issues and concerns to be given “great weight”, a written report needs to be submitted. In this case, such a report was not submitted and the issues and concerns were, therefore, not entitled to have "great weight”. This brings up some drawbacks to ANCs that David F. Garrison discusses in his article District of Columbia’s Elected Advisory Neighborhood Commissions: An Unlikely Experiment in Governance at the Grassroots.37 He says that much of the time spent in ANC meetings is spent “reacting to issues and cases” usually in relation to liquor licenses, zoning, or historic preservation. The number of ANCs that have sub-committees devoted to reviewing Alcoholic Beverage licensing substantiates this.38 Garrison also points out that all Commissioners and members are unpaid volunteers, normally with other full-time jobs, volunteer commitments and families to take care of. This means less time for ANCs to “initiate complicated policy or project ideas of their own”. To relate this to the case of Concerned Citizens v. District of Columbia39, ANCs can become extremely limited in their ability to successfully appeal a Council or Board decision for a number of reasons. An appeal to the Court of Appeals requires legal services, which are both time consuming and costly.40 Both time and financial limitations can restrict an ANC’s ability to successfully appeal as court cases have strict deadlines and require a lot substantiated evidence.

Concerned Citizens v. District of Columbia, 634 A.2d 1234 (D.C. 1993) Justia US Law

Garrison, David F. "District of Columbia’s Elected Advisory Neighborhood Commissions: An Unlikely Experiment in Governance at the Grassroots." State and Local Government Review 43, no. 2 (2011): 15966. 38 "Committees." Advisory Neighborhood Commission 6A. http://anc6a.org/committees/ 39 Concerned Citizens v. District of Columbia, 634 A.2d 1234 (D.C. 1993) Justia US Law 40 U.S. Department of Justice, Attorney’s Office - District of Columbia, The Laffey Matrix, 1981-1992.

10 Also, the percentage of the residents that actually attend ANC meetings,

which occur at least 9 times in a year, is very low.41 Jessica Rial, in her paper titled Neighborhood Democracy: Case Study of an Advisory Neighborhood Commission in Washington, D.C., uses ANC 1D as an example of this.

ANC

1D represents between 12,000 and 15,000 residents yet meeting attendance only ranges from 10-15 for regular meetings. For meetings involving controversial topics this number goes up to 30.43 So, even for the meetings with the highest attendance, this represents only 0.25% of the population. Without detailed attendance records for individual attendees, it cannot be proven, but we can assume that a large portion of the 0.25% are frequent and repeat attendees. This statistic alone, although only for one ANC, is evidence that although ANCs may bring forth valid points in relation to liquor licenses, traffic, and land-use compatibility, their concerns only represent what 0.25% of the neighborhood thinks and can be undemocratic. On the other hand, some ANCs have impacted minor planning and design-related issues outside of the courts. In his paper, Garrison describes ANC’s role in the District’s Planned Unit Development (PUD) process. ANCs are the primary conduit for communication and coordination between residents and the project’s developer. As part of the PUD process, the ANC comments on things like “height, density, parking ratios, unit mixes, and community benefits...”44 As evident in the written minutes of a presentation given by the Washington Metropolitan Area Transit Authority (WMATA) to ANC 4B, the

D.C. Code § 1–309.11(b)(1) Rial, Jessica. "Neighborhood Democracy: Case Study of an Advisory Neighborhood Commission in Washington, D.C." University of Nebraska at Omaha. 43 Ibid 44 Garrison, David F. "District of Columbia’s Elected Advisory Neighborhood Commissions: An Unlikely Experiment in Governance at the Grassroots." State and Local Government Review 43, no. 2 (2011): 15966. 42

concerns of the ANC were heard and addressed by the WMATA.45 These changes included a decrease of 60 units in a proposed development, going from 260 to 200, as well as reducing the height of the building by one storey. It could be argued that the accumulation of these minor changes across the District would drastically affect the built environment and density, but without more detail with regards to specific details such as the type of units eliminated, or an analysis of what fewer parking spaces has on traffic, it is not conclusive. Conclusion Based on all the above cases and examples, the creation of ANCs in 1974 has created a unique avenue for public consultation and for residents’ voices to be heard. However, the impact on D.C.’s built environment is negligible and has resulted only in minor changes. Although they have not affected the built environment to a great degree, ANCs and the statutory requirement for their voice to be heard and for their concerns to be given great weight is an innovative citizen engagement technique. The issue now is engaging more residents and encouraging more participation in ANC’s affairs, which has been an ongoing discussion amongst planning professionals. ANCs come with their flaws and costs as argued previously and is reflected by some people’s opinion of Home Rule: although there may be flaws, D.C. is better off than it would be without them, if only to engage a few more citizens.

“WMATA Presentation to Advisory Neighborhood Commission (ANC) 4B”, Washington, D.C, November 25, 2013

Bibliography Austermuhle, Martin. "Four Decades After Getting Home Rule, The Fight In D.C. Goes On." American University Radio. November 15, 2013. http://wamu.org/programs/metro_connection/13/11/13/four_decades_on_dc_cont inues_fighting_for_home_rule. Charter Referendum Ballot. Sample Ballot. Board of Elections for the District of Columbia. (May 7, 1974) "Committees." Advisory Neighborhood Commission 6A. http://anc6a.org/committees/ Concerned Citizens v. District of Columbia, 634 A.2d 1234 (D.C. 1993) Justia US Law Craig, Tim. "Obama to Use D.C. 'Taxation without Representation' License Plates." The Washington Post, January 15, 2013. D.C. Code § 1–309 District of Columbia Home Rule Act S. 1435, Pub. L. 93-198, 93rd Cong. (1973) Donnelly v. D.C. Alcoholic Beverage Control 452 A.2d 364 (D.C. 1982) Justia US Law Foggy Bottom Association v. District of Columbia Board of Zoning Adjustment, 99-AA-1105 (D.C. 2002) Justia US Law Garrison, David F. "District of Columbia’s Elected Advisory Neighborhood Commissions: An Unlikely Experiment in Governance at the Grassroots." State and Local Government Review 43, no. 2 (2011): 159-66. Jenkins Jr., Kent. "House Turns Down Statehood for D.C.; Both Sides Upbeat After 277-153 Vote." The Washington Post, November 22, 1993. ProQuest Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law Lee, Jennifer. "Neighbors Want Nightclub Closed; New D.C. Law May Help Their Efforts." The Washington Post, July 16, 1998 Neighbors Against Foxhall Gridlock v. District of Columbia Board of Zoning Adjustment, No. 01-AA-53 (D.C. 2002) FindLaw Pianin, Eric. "Fauntroy Renews Bid For D.C. Statehood." The Washington Post, January 8, 1987. ProQuest

Rial, Jessica. "Neighborhood Democracy: Case Study of an Advisory Neighborhood Commission in Washington, D.C." University of Nebraska at Omaha. U.S. Department of Justice, Attorney’s Office - District of Columbia, The Laffey Matrix, 1981-1992. Valentine, Paul “ANCs -- Unwanted Stepchildren in D.C.,” The Washington Post, (Washington, D.C.), Feb 12, 1976; ProQuest Historical Newspapers Vargas, Theresa. "Soon-to-Open D.C. Strip Club Worries Neighbors and Competitors." The Washington Post, May 21, 2013. "What Does the Term "build Environment" Mean?" University of Windsor. http://www1.uwindsor.ca/vabe/built-environment. Wheeler v. District of Columbia Board of Zoning, 12632 (D.C. 1978) Justia US Law “WMATA Presentation to Advisory Neighborhood Commission (ANC) 4B”, Washington, D.C, November 25, 2013