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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

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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.

1 Charter Referendum Ballot. Sample Ballot. Board of Elections for the District of Columbia (May 7, 1974) 2 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): 159-66. 6 "What Does the Term "build Environment" Mean?" University of Windsor. http://www1.uwindsor.ca/vabe/built-environment.

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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) 8 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_rule.

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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 of 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, 13 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_rule. 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

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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.

20 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/

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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 24 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

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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 of 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

27 Donnelly v. D.C. Alcoholic Beverage Control 452 A.2d 364 (D.C. 1982) Justia US Law 28 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

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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” 35 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.

32 Kopff v. District of Columbia Alcoholic Beverage, 381 A.2d 1372 (D.C. 1977) Justia US Law 33 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

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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.

36 Concerned Citizens v. District of Columbia, 634 A.2d 1234 (D.C. 1993) Justia US Law 37 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. 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.

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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. 42 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

41 D.C. Code § 1–309.11(b)(1) 42 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): 159-66.

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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.

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

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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_continues_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 LawCraig, Tim. "Obama to Use D.C. 'Taxation without Representation' License

Plates." The Washington Post, January 15, 2013. D.C. Code § 1–309District 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 LawGarrison, 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 LawLee, Jennifer. "Neighbors Want Nightclub Closed; New D.C. Law May

Help Their Efforts." The Washington Post, July 16, 1998Neighbors Against Foxhall Gridlock v. District of Columbia Board of

Zoning Adjustment, No. 01-AA-53 (D.C. 2002) FindLawPianin, Eric. "Fauntroy Renews Bid For D.C. Statehood." The Washington

Post, January 8, 1987. ProQuest

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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