President's Letter to City Council, September 23, 2003
Subject: PTO Pedestrian Tunnel
TO: City Clerk
Please include the letter in tonight's package to Council because it
relates to Item #20 on the docket for the September 23, 2003 Regular
City Council meeting.
___________
Mayor and City Council
City Hall
Alexandria, VA
Re: PTO Pedestrian Tunnel SUP Requirements
Dear Mayor and City Council:
At its September 16, 2003 meeting, Seminary Hill Association, Inc.
(SHA) discussed the Duke Street pedestrian tunnel, and the failure of
the
Carlyle Development Corporation (CDC) to meet the SUP requirement to
build
the tunnel before the Patent and Trademark Office (PTO) complex is occupied.
SHA strongly urges the City Council to take both disciplinary and remedial
actions in accordance with the terms of the Special Use Permit and as
allowed by law. Specifically, SHA believes that withholding the certificate
of occupancy until the tunnel is at least functional is appropriate under
the circumstances.
We are very concerned with the significant delay on the construction
of the PTO pedestrian tunnel under Duke Street, the City Manager's August
15, 2003, and September 22, 2003, memoranda and the proposed response.
At
the outset, the tunnel is scheduled to be Docket Item #20 on tonight's
agenda. The City Manager provided Council with one day's notice to review
his memorandum, which includes a request that Council decide against
directing withholding of the CO and approval of a mitigation plan that
raises many questions and has several significant weaknesses.
This is an important matter because the PTO SUP was approved in March
2000
based, in large part, on the construction of that tunnel to facilitate
the
use of public transportation. Importantly, the City recomended in at
least
two places in connection with aprpoving the SUP that the CO should not
be
issued until completion of the tunnel. There has been little or no progress
on the tunnel in three and a half years. As you know, many civic
associations and other organizations have requested that the certificate
of
occupancy be delayed until the tunnel is complete primarily for health,
safety, and traffic and congestion concerns, as well as credibility of
the
City. We have the following concerns with the issue as presented to Council
tonight and the proposed response:
- The issue here is that there has been a material breach of
the SUP requirements, and what enforcement and accountability options
are
available to respond. We suggest withholding the CO. In both the August
15
and September 22 memoranda, the City Manager dismisses the possibility
of
withholding the occupancy permit because, in his legal judgment, PTO
and
LCOR are not legally responsible for the delay. This conclusion is
not only
legally suspect, it is also inappropriate to base a decision on our
view of
the contractual relationship between GSA, PTO, LCOR and CDC. Which
party is
legally liable for the delay is a matter among the parties to the contract
and provides no basis (one way or the other) for the City to reach
its decision. The question is whether and how to hold CDC accountable
for
failure to meet a key term in the SUP. We believe that withholding
the permit is not only appropriate but sends an important message that
the
City
will enforce the plain terms of its SUPs and that parties to a SUP
will be
held responsible to its requirements. If that leads to GSA, PTO or
LCOR having a cause of action against CDC, that is between them. Moreover,
by
inappropriately interjecting ourselves into a potential contractual
dispute,
we may also expose ourselves to potential liability if and when that
dispute
lands in court. In this instance, CDC is essentially alleging a "differing
site condition," a well-known legal defense in federal government
contracts.
We should not be in the middle of this contractual dispute or let it
affect
our judgment. Moreover, any failure of CDC to meet its schedule is
a matter
governed by the contract between the parties, which includes remedies
available. The City Manager provides no explanation of why the City
of Alexandria and its citizens should "bail out" a contractor
who failed to
meet its responsibilities.
- The proposed mitigation plan significantly amends a material
term of arguably the most important SUP in the history of the City. An
amendment of this magnitude and import should be required to go through the
normal process with public notification and input. In this regard, the City
Manager requests that City Council make a decision during a legislative
session to exclude any public input into the decision. We believe a matter
of this public and policy importance deserves an airing. The suggestion
that the staff hold "community meetings" after the fact is inadequate
to
provide for a fair hearing. Our experience has been that these "after
the
fact" community meetings are ineffective and do not allow for the meaningful
discussion and input that the normal process provides.
- The proposed mitigation plan has significant weaknesses and
raises many questions that require careful review. The mitigation calls
for closing at least part of Callahan Drive, an important road between
Duke and King. Moreover, while the City Manager touts the PTO's encouragement
of public transportation, each program cited in the September 22, 2003
memorandum is nothing more than garden-variety programs available at any
federal agency. In short, PTO offers nothing that it is not already
required by law to do. Moreover, we knew of many of these measures at the
time the SUP was approved, meaning that the City concluded that a tunnel
is necessary even though the same inducements to take public transportation
existed when it approved the SUP. Significantly, no mention is made of
telecommuting, a federal policy many federal agencies have pursued to ease
congestion and commuting burdens. These significant matters are exactly
the reason why it is important to understand the nature and scope of
the
proposal and have public notification and input.
- The standard that should be applied in this instance is what is in the best interests of the City of Alexandria and its citizens. In that regard, the City Manager's recommendations focus exclusively upon what is in the best interests of PTO, LCOR, CDC, GSA and other organizational entities. These are large organizations capable of protecting and advancing their own interests. Noticeably absent is any discussion or reference to the best interests of the City of Alexandria, nor is there any discussion of why the City should reverse its March 2000 decision to withhold the CO until completion of the tunnel. The City's focus should be on whether waiving a material term of an important SUP without the benefit of public notification and hearing and without fully understanding the impacts to health, safety and congestion is inappropriate and contrary to law and policy.
For the above reasons, SHA requests that you direct the City Manager to withhold the CO, and provide the community with a full and fair opportunity to review the impacts of this amendment to the SUP and potential disciplinary and remediation actions.
Frank Putzu
President, Seminary Hill Association, Inc.
1423 Juliana Place
Alexandria, VA 22304
703/823-8324
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