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:

  1. 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.
  2. 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.
  3. 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.
  4. 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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