The Honorable Mayor and Members of City Council
City Hall
301 King Street
Alexandria, VA 22314

Re: Independent Review of PTO Pedestrian Tunnel and Docket Item 26 of the January 13 , 2004 City Council Session

Dear Mayor and Council Members:

In March 2000, City Council approved a Special Use Permit (SUP) for the development of the Patent and Trademark Office (PTO).  One of the key requirements of that SUP was the construction of a pedestrian tunnel by December 2003 to create a safe access to the King Street Metro station to facilitate the use of public transportation.  The tunnel was not constructed and its scheduled opening date has been delayed until at least July 2004, well after initial occupancy of the buildings.  Seminary Hill Association, Inc. (SHA) has expressed its concerns to you about the delays and the impacts of precluding effective public transportation and ignoring SUP requirements.  Despite these reservations (and without public hearings), the city issued the Certificate of Occupancy (CO) and declined to amend the express terms of the SUP.  At its December 14, 2003, meeting, the Board of Seminary Hill Association, Inc. (SHA) voted to request that City Council launch an independent review of the process leading to the collapse of the requirement.

We have also reviewed the City Manager's January 8, 2004, Memorandum on this issue addressing City Council's request to review withholding future COs in the event the developer fails to meet unidentified benchmarks and the promised July 1, 2004, completion date.  In that memorandum, the City Manager recommends that Council continue to issue COs whether or not the developer meets the promised completion date or the to be determined benchmarks.  The memorandum and the reasons underlying his request to effectively amend the SUP further add weight to the request for an independent review of this matter.

The sequence of events leading to the failure to construct the tunnel on time is troubling.  As you know, the developer did not want to construct the tunnel and argued against its inclusion in the original SUP.  The city, however, concluded that the tunnel was necessary.  In fact, in the report accompanying the recommendation in March 2000, city staff stated in at least two separate places that no CO should be issued until the tunnel was complete.  In June 2003, LCOR faxed a copy of a document purportedly being a settlement agreement between the developer and the city.  The settlement contemplated some mitigation (and no disciplinary) measures until at least July 2004.  Apparently, the City Manager signed this document in July 2003.  We understand that the developer believes that this agreement precludes any further disciplinary action without jeopardizing the mitigation measures.  This settlement document effectively amended the SUP neither with public input or City Council review.  A public forum was held in October 2003 to discuss the mitigation measures but no public hearing was ever held to examine the events leading up to this debacle or the propriety of issuing the initial CO.  Council was scheduled to discuss the future COs at its December 8, 2003, meeting, but at the request of the City Manager, that discussion was delayed until at least January 2004.  The City Manager now requests that City Council delay taking any effective action to remedy the failure to construct the tunnel.

The circumstances surrounding the PTO pedestrian tunnel raise troubling and unanswered questions.  The linchpin of the SUP for PTO was the construction of this tunnel to fulfill the promise that 45% of employees and visitors to PTO would use public transportation.  Under the circumstances, SHA urges City Council to obtain an independent review of the situation to advise the legal and practical consequences of the settlement agreement entered into by the City Manager, the proposed motion to withhold future COs, and the developer's claim that it can "withdraw from the agreement" if future COs are withheld.  Consistent with the developer's position, the City Manager's January 8, 2004, memorandum argues that because the first occupancy of fewer than 1,000 occupants has occurred without significant safety risks, the City should issue COs for at least the next 2,600 occupants, regardless of the status of the tunnel.  The City Manager recommends that the necessity to complete the tunnel by June 30, 2004, be evaluated after these occupancies in February.  The City Manager further suggests that a judgment can be made as to the value of the mitigation plans "without the concourse being in operation" and further suggests that "[e]ven if additional impacts were found to likely arise, additional mitigation measures would be available to offset them."  January 8 Memorandum, p. 3.  In essence, the City Manager is arguing that the tunnel may never have to be built if alternative mitigation plans are, in his sole judgment, effective.  If implemented, the recommendation amends the SUP to nullify any requirement to build the tunnel by June 30, 2004, and may relieve the developer from the requirement to build the tunnel at all.  Moreover, the City Manager continues to argue that our main concern should be the legal position of the PTO with respect to third parties instead of the interests of the taxpayers and residents of Alexandria. 

In light of the above, the fact that there was never any public hearings on the matter, and that the elected officials of City Council were denied the opportunity to take any meaningful action, SHA respectfully requests an independent review of these events.  The independent review should provide objective and credible legal advice to City Council concerning the issues raised by the failure to construct the pedestrian tunnel in accordance with the requirements of the SUP.  Moreover, because the developer apparently has taken the position that denial of any further COs would negate the mitigation plan, the independent review should also examine options available to the city to amend the terms of the SUP and the consequences of such action.  This information is particularly useful in light of the upcoming debate on the proposed motion to withhold future certificates of occupancy for the remaining Patent and Trademark Office buildings if the pedestrian tunnel is not completed by June 30, 2004. 

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